To invoke 306 IPC suicide due to cruelty under 498A has to be proved : Bombay High Court 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 12 OF 2003
The State of Maharashtra … Appellant
V/s.
1. Ramesh Damodar More
Age 30 years.
2. Sou Jyoti Ramesh More
Age 26 years … Respondents
Both Residing At Village Lonare,
Tal. Alibag, Dist. Raigad.
——
Mr Deepak Thakare, with Mr P.H. Gaikwad, APP for the State /
Appellant
None for the Respondents.
—–
Coram : P.N.DESHMUKH, J.
Date : 11 May 2017
ORAL JUDGMENT

1. This Appeal is preferred by the State of Maharashtra against
judgment in Sessions Case No. 35 of 2002 passed by IInd Adhoc
Additional Sessions Judge, Raigad, at Alibag thereby acquitting
both the Respondents for the offence punishable under Section 306
read with 34 of Indian Penal Code.
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2. In brief case of the prosecution is that both Respondents being
referred as accused since provided ill-treatment to the deceased
Priya, wife of brother of accused No.1 Ramesh at her matrimonial
house. On 19th November 2001 at around 9.30 a.m. she committed
suicide by drowning into the well.
3. After the incident of commission of suicide by Priya,
intimation of incident was given by Dwarkanath Janu Patil, PW
No.3, Police Patil of village Lonare as per Exhibit 24 on the
strength of this AD was registered and crime No. 50 of 2001 and
during the course of investigation spot panchnama and inquest
panchnama came to be drawn and body was sent for post-mortem.
Statements of witnesses were recorded and statement of mother of
deceased also recorded. The matters was sent to Senior Public
Prosecutor for opinion before registration of crime. On obtaining
further opinion from Sr. P.P. Mother of complainant was called in
Police Station and her statement was recorded. On the strength of
which offence came to be registered vide C.R No. 1 of 2002 and
was further investigated. On completion of investigation charge-
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sheet came to be filed for the offence punishable under Section 306
read with 34 of the Indian Penal Code before the competent Court
of Magistrate.
4. In due course of time case came to be committed to learned
Sessions Court for trial. Charge is framed against accused to which
accused pleaded not guilty and claimed to be tried. To establish the
charge against the accused, the prosecution has examined in all five
witnesses and commenced its evidence by examining Bharati, PW
No.1, complainant, the mother of deceased, Bhaskar, PW No.2 the
father of deceased Dwarkanath Patil, PW No.3, Police Patil of
village Lonare, Vaman, PW No.4, Head Constable, Investigating
Officer, who had investigated AD No.50 of 2001 and concluded
evidence by examining Mukund Bhosle, PW No.5, API.
Prosecution has proved Spot Panchnama Exhibit 14, Inquest
Panchnama Exhibit 15, cause of death certificate Exhibit 16,
postmortem report Exhibit 17 and FIR Exhibit 24. Accused did not
examine any witness on their behalf nor examining themselves on
oath.
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5. Learned Trial Judge considered the evidence as above
acquitted both the accused. Hence this Appeal.
6. Heard learned APP for the State. None present for the
Respondents-Accused. It is submitted by the learned APP that from
the evidence of Bharti, the complainant it has come on record that
immediately prior to the incident of suicide committed by Priya by
drowning into the well, she was subjected to ill-treatment and thus
was abetted by both the accused to commit suicide. Prosecution has,
therefore, heavily relied upon evidence of PW No.1, the mother of
deceased and has submitted that since she is also an eyewitness to
incident of quarrel which has taken place between accused and
deceased immediately prior to her committing suicide. Prosecution
has established charges levelled against the accused and had
therefore, submitted that Appeal be allowed.
7. In the background of submissions advanced as aforesaid, I
have perused the entire evidence on record with the assistance of
learned APP and has also gone through documents.
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8. From the evidence of PW No.1 it has come on record that
deceased was residing with her husband, who is elder brother of
accused No.1 Ramesh in same house but separately since three to
four years prior to incident. It has further come in her evidence that
about one and half years prior to incident when deceased had
visited her parental home at Pen, as she was scolded by accused
No.2 Jyoti and therefore, she as well as her husband, son and her
daughter went to the house of deceased situated at Lonare. At that
time she enquired accused No.2 about reason to scold Priya when
quarrel took place between them. She has stated that at that time
due to intervention of parents of accused No.2 Jyoti, the quarrel
passified. She also stated that at that time due to intervention of
Police Patil of village Lonare, as assurance was given to thereafter
not to provide ill-treatment to deceased, she returned back and did
not lodge complaint.
9. PW No.1 Bharti has further stated that one and half years
thereafter on 16th November 2001 deceased had come to her
parents home at Pen. However on the next day she himself brought
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her deceased daughter to her matrimonial home at Lonare along
with her children. On that night since Priya was not keeping good
health. She was referred to Doctor Sabu on that night. It is further
the case of the complainant that on 19th November 2001 at 9.00
a.m. when she was to return back to her house at Pen, both the
accused quarreled with deceased and had manhandled her and in
that course of said transaction accused No.1 Ramesh had stated to
deceased to go and commit suicide and die and thus Priya rushed to
the well situated to the back side of the house and committed
suicide by drowning.
10. In view of evidence of complainant as aforesaid it is material
to point out that deceased was residing with her husband who is
brother of accused No.1 Ramesh separately though in the same
house since three to four years prior to incident. Further evidence of
complainant is about earlier incident which took place about more
than one year before when quarrel had taken place between
deceased and accused No.2 Jyoti and was passifed due to
intervention of parents of accused No.2. Admittedly no reports in
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this respect of any of these earlier incidents are lodged.
11. As per further evidence of Bharti, Priya had visited her house
on 16th November 2001 and on the following day she took Priya to
her matrimonial home and on 19th November 2001 when she was
about to leave house to come back to Pen quarrel took place
between accused and deceased when accused No.1 stated to
deceased that she should commit suicide and die. Considering this
evidence as aforesaid same appears to be material improvement as
PW No.1 Bharti has admitted that though she has stated as aforesaid
to Police she is unable to to put forth any reason as to why same is
not recorded in her statement. This omission therefore goes to the
root of the case thereby dislodging case of prosecution of accused
No.1 saying to deceased to commit suicide and die. Further
evidence of PW No.1 complainant is also not worthy to be relied
upon when she admitted that there was some dispute between Priya
and her husband prior to incident and he has also issued legal notice
to her and has admitted that after the marriage of accused, they were
residing separately from deceased and her husband. Though PW
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No.1 Bharti, the mother of deceased had denied that Priya was
suffering from fits and she was continuously under treatment of Dr
Sabu. From evidence of PW No.4 Head Constable Mr Mhatre who
has investigated accidental death has admitted that during the
course of investigation it revealed to him that deceased was
epileptic patient and on the day of incident she had an attack of
epileptic in her house.
12. Having admitted as aforesaid, it cannot be said that deceased
committed suicide due to any ill-treatment / abatement alleged to
have been caused to her by the accused as there is every possibility
of deceased committing suicide due to her ill-health.
13. Evidence of PW No.2 Bhaskar, father of the deceased is also
similar when he has stated above incident of alleged ill-treatment
provided to deceased Priya about one and half hears before and has
further deposed about the indulgence by parents of accused No.2
Jyoti due to which matter was at that time settled and thus no report
was lodged. He has thereafter deposed about the incident dated 16th
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November 2001 when Priya had come to her parents home and had
complained about ill-treatment provided to her and his wife had
reached her to her house on 17th November 2001. He has further
stated that on 19th November 2001, at about 9.30 a.m. Puja, the
daughter of deceased telephonically intimated about quarrel which
has arrived between accused, deceased and her mother and
therefore states that he started to go to Lonare and on reaching there
in noon learnt about suicide committed by Priya. It is material to
note that Puja who is daughter of deceased and who is stated to
have informed PW No.2 Bhaskar about the quarrel alleged to have
occurred on 19th November 2001 is not examined. Even otherwise
evidence of PW No.2 Bhaskar also appears to be with material
omissions when he claims to have stated in the police statement
about incident of quarrel which took place one and half years before
and further claims to have stated in his statement of indulgence by
Police Patil and due to his intervention quarrel was passifed and has
further claims to have stated in his statement recorded by police that
Puja, the daughter of deceased has telephonically informed about
quarrel which was in progress at 9.30 a.m. on 19th November 2001,
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has shown his inability as to why all these facts are not mentioned
in his statement. The omissions are found to be duly proved. In that
view of the matter evidence of PW No.2 also is not convincing at
all having full of material omission going to the root of the case and
as such do not establish involvement of accused for the charge
levelled against them.
14. Learned Trial Judge has thus rightly disbelieved evidence of
PW No.1 and PW No.2 Bhaskar the parents of deceased who are
interested witnesses and their evidence even otherwise do not
inspire confidence.
15. Admittedly there are no other witness whose evidence needs
to be considered. In fact from the evidence of Bhaskar it has come
on record that on the day of incident, he reached to the matrimonial
home of deceased where PW No.1 Bharati informed that there was
quarrel between deceased and accused in which she was
manhandled and therefore, she committed suicide. Inspite of that
neither of these witnesses being parents of deceased thought
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necessary to lodge a report with police. In fact it has also come in
the evidence of Bhaskar that in his presence police were drawing
panchnama after taking out dead body from the well. However in
the cross examination Bhaskar has admitted that on the day of
incident itself they wanted to lodge report however police told to
lodge report after the funeral and was thus lodged on 21st
November 2001 by his wife PW No.1 Bharti. Similarly in the
evidence of PW No.1 Bharti proved her report Exhibit 20 dated 21st
November 2001. Prior to that on the basis of report lodged by PW
No.3 Dwarkanath Patil, Police Patil, AD report Exhibit 24 was
registered and was investigated by PW No.4 Waman Mhatre who
further drawn spot panchnama, inquest panchnama and after
recording statement of complainant sent case paper for obtaining
Senior Public Prosecutor’s opinion. Further investigation is carried
out by PW No.5 Mukund Bhosle, API who has stated that after
receipt of opinion from the office of Government Pleader, sought by
Head Constable Mr Mhatre, on 2nd January 2002 he called PW
No.1 Bharti and had recorded her statement and registered offence
against the accused. Above peace of evidence thus also goes to
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establish that as there was no material to register offence against the
accused persons, no offence was registered immediately but such a
long delay is caused to register offence on obtaining a legal opinion.
16. In that view of the matter since case of prosecution of quarrel
between deceased and accused immediately prior to incident of
deceased causing suicide is itself not reliable to be acted upon. It
cannot be said that accused in any manner had abated the decesed to
commit suicide. By now law on the point of offence punishable
under Section 306 of Indian Penal Code is well established. For
invoking the provisions of Section 306 of Indian Penal Code it is
necessary for prosecution to establish that deceased committed
suicide as a result of cruelty provided to her within the meaning of
Section 498A of Indian Penal Code and that the act of commission
of suicide is abated by the accused. In the case in hand on
considering evidence as aforesaid there is no material to establish
that accused abated commission of suicide much less immediately
prior to deceased committing suicide.
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17. Hence the Appeal is liable to be dismissed as according to the
settled law while considering appeal against acquittal when two
views are possible on the basis of evidence on record, one in favour
of accused taken by the Trial Court should not be disturbed by the
Appellate Court unless there are compelling circumstances such as
non consideration of evidence on record by the Trial Judge. Even
otherwise the scope of interference of Appellate Court in an Appeal
is by now well established that unless view taken by the Trial Judge
is either impossible or perverse, it is not permissible to interfere
therein. Upon perusal of the impugned judgment and material
placed on record it is found that accused came to be acquitted by the
Trail Court by passing well reasoned order.
18. In that view of the matter since prosecution has failed to
establish charge levelled against the accused persons beyond
reasonable doubt. Appeal is liable to be dismissed.
19. Hence Appeal is dismissed.
(P.N.DESHMUKH, J.)
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