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2018 DIGILAW 535 (BOM)

Dilip v. State of Maharashtra

2018-02-23

ROHIT B.DEO

body2018
JUDGMENT : 1. Challenge is to the judgment and order dated 23-7-2004 rendered by the learned IV Ad hoc Additional Sessions Judge, Amravati in Sessions Trial 181/2002, by and under which the appellants-accused are convicted for offence punishable under Section 306 read with Section 34 of the Indian Penal Code (“IPC” for short) and are sentenced to suffer simple imprisonment for five years and are further convicted for offence punishable under Section 498A read with Section 34 of the IPC and are sentenced to suffer simple imprisonment for two years and to payment of fine of Rs.500/-. 2. The genesis of the prosecution lies in oral report dated 30-7-2002 lodged by P.W.1 Shardabai Wankhade at Police Station Benoda. The gist of the report is that Chandathe daughter of the informant, who married accused Dilip Tale on 21-3-2001, committed suicide by consuming poison on 29-7-2002 due to the harassment to which she was subjected by accused Dilip, father-in-law Marotrao and mother-in-law Shakutalabai. The oral report states that it was disclosed by deceased Chanda that the accused suspected her chastity, that accused Dilip assaulted Chanda under the influence of liquor at the behest of accused Marotrao and Shakuntalabai. 3. On the basis of the said report (Exhibit 47) and printed first information report (Exhibit 48) the Benoda Police Station registered offence under Sections 306 and 498A read with Section 34 of the IPC against the accused. Investigation ensued, upon completion of which the chargesheet was submitted in the court of Judicial Magistrate First Class, Warud, who committed the proceedings to the Sessions Court. The learned Sessions Judge framed charge (Exhibit 28) for offence punishable under Section 498A read with Section 34 and Section 306 read with Section 34 of the IPC against the accused. The accused abjured guilt and claimed to be tried. The defence is of total denial. The trend of the cross-examination would suggest that the defence is that Chanda was not happy since the standard of living of the accused was vastly different than the standard of living in her parental home. The marriage was performed against Chanda's will, is the defence. 4. The submission of the learned Counsel for the accused Shri R.M. Patwardhan is that even if the evidence is taken at face value, offence punishable under Section 306 of the IPC is not made out. The marriage was performed against Chanda's will, is the defence. 4. The submission of the learned Counsel for the accused Shri R.M. Patwardhan is that even if the evidence is taken at face value, offence punishable under Section 306 of the IPC is not made out. The mens rea which is a necessary ingredient of Section 306 of the IPC is not established. The prosecution has not established that the harassment or illtreatment to which Chanda was subjected to, was wilful and was intended to drive her to commit suicide or that the accused must be attributed with the knowledge that the harassment or ill-treatment would inevitably force Chanda to take the extreme step. The submission is well merited. 5. The first information report would reveal that the most serious allegation against the accused was that they suspected the chastity of Chanda. The only other allegation in the oral report is that accused Dilip used to physical assault Chanda under the influence of liquor at the instance of the co-accused. P.W.1 has deposed that accused Dilip used to suspect Chanda's chastity when she was pregnant and used to allege that she was pregnant from one Sunil Ghongade. Similar conduct is attributed to the father and mother of accused Dilip. This evidence is on the basis of what is narrated to P.W.1 by the deceased Chanda. It is difficult to believe that when Chanda was pregnant, all the accused suspected her chastity and accused her of having conceived due to an extra marital relationship. It is elicited in the cross-examination of P.W.1 thus : It is not true to say that Chanda had come to my house for her delivery. It is true to say that accused had performed the function of “palnautsav' in 7th month of pregnancy. Chanda delivered male child. Accused had performed the function of naming ceremony of the said son. It is true to say that Chanda had not made any complaint about her trouble till that date. In the teeth of the admission reproduced supra, the evidence that Chanda disclosed to P.W.1 that during her pregnancy her character or chastity was suspected, must be discarded as unreliable. 6. It is elicited in the cross-examination of P.W.1 that Chanda did not make any complaint till the naming ceremony of her son. In the teeth of the admission reproduced supra, the evidence that Chanda disclosed to P.W.1 that during her pregnancy her character or chastity was suspected, must be discarded as unreliable. 6. It is elicited in the cross-examination of P.W.1 that Chanda did not make any complaint till the naming ceremony of her son. It is highly improbable that a husband who tells his wife that she has conceived out of an extra marital relationship, would celebrate the pregnancy (the seventh month function) and would enthusiastically perform the naming ceremony. The evidence of P.W.1 that Chanda disclosed that Dilip threw her against the door and she suffered injury to waist, is an improvement. The disclosure during pregnancy is inconsistent with the admission that Chanda did not make any grievance till the naming ceremony of the son. It is elicited in the cross-examination that Chanda was educated and beautiful and comparatively the accused were less educated. It is further extracted in the cross-examination that there is a suicidal tendency in the family and Chanda's father Dhanraj and brother Gajanan, both committed suicide by consuming poison. It is further elicited that there was great difference between the standard of living of Chanda and that of the accused. P.W.1, however, denies the suggestion that Chanda did not consent for marriage with Dilip and the marriage was performed against her will. 7. P.W.2 Sanjay Raut claims to have seen marks of beating on Chanda's face. The rest of the evidence is hearsay, since P.W.2 states that he heard from residents of village Benoda that Chanda was facing trouble. The evidence of marks of beating must be rejected without any serious discussion. P.W.1 does not speak of such marks. The deposition is inconsistent with the inquest panchanama and the postmortem report. The witness admits that attention of the doctor or police was not invited to the marks of beating. 8. The only statement of P.W.3 Ganesh Wankhade is that he saw marks of beating on the face of deceased Chanda and while in Benoda village he came to know that Chanda was beaten. For reasons spelt out supra, the evidence of P.W.3 is of no assistance to the prosecution. 9. P.W.4 Babarao Ghongade claims that he escorted Chanda to parental home on the occasion of Akhadi. Chanda disclosed that her husband used to consume liquor and beat her suspecting her character. For reasons spelt out supra, the evidence of P.W.3 is of no assistance to the prosecution. 9. P.W.4 Babarao Ghongade claims that he escorted Chanda to parental home on the occasion of Akhadi. Chanda disclosed that her husband used to consume liquor and beat her suspecting her character. Akhadi would be between June to August. The evidence is inconsistent with the assertion of P.W.1 that Chanda did not have any complaint till the naming ceremony of the child. The evidence that P.W.4 escorted Chanda to her parental home on the occasion of Akhadi, is an omission. The evidence that abrasions were noticed on the face of Chanda must be discarded as unreliable. 10. P.W.5 Pramod Wankhade claims to have learnt from Chanda that she was beaten by accused Dilip at the instance of his father and mother. P.W.5 claims to have been told by Chanda at the time of Kartiki that she was facing trouble in the matrimonial house. The evidence that Chanda met P.W.5 and made the disclosure, is an omission. 11. The only other material witness from the perspective of the prosecution is the investigating officer P.W.9 Subhash Tangade. He admits that there is no reference to any injury on the face of the deceased in the inquest panchanama and the postmortem report. The omissions which are brought on record in the evidence of the prosecution witnesses are proved during the cross-examination of P.W.9. 12. In order to bring home the charge of abetment of suicide, it was incumbent for the prosecution to prove beyond reasonable doubt that the accused harassed or ill-treated Chanda intending to force her or compel her or push her to commit suicide. The evidence on record is not sufficient to prove that the acts attributed to the accused were intentional and were done with the requisite mens rea. The evidence that Chanda disclosed that her chastity was suspected when she was pregnant, is not reliable. The only other disclosure, to which P.W.1 makes a reference is physical abuse under the influence of liquor at the instance of the parents-in-law. Having given my anxious consideration to the evidence of the prosecution, it is difficult to record a finding with certainty that the ill-treatment was wilful and was intended to push or force Chanda in a situation in which she would be left with no option but to commit suicide. Having given my anxious consideration to the evidence of the prosecution, it is difficult to record a finding with certainty that the ill-treatment was wilful and was intended to push or force Chanda in a situation in which she would be left with no option but to commit suicide. Even according to P.W.1, Chanda did not make any complaint till the naming ceremony of the child. This would rule Chanda having made any disclosure to any prosecution witness on the occasion of first Akhadi or Kartiki after the marriage, on which occasions traditionally the bride visits her parental home. If the evidence on suspicion about character is kept out of consideration, no other reason is brought on record for the accused to ill-treat or harass Chanda. Even according to P.W.1, the disclosure is that Chanda was physically abused under the influence of liquor at the instance of her parents-in-law who suspected her character. It is not the case of the prosecution that the harassment or ill-treatment was to coerce Chanda or her relatives to fulfill any unlawful demand. From the evidence, it is difficult to record a finding that the harassment or ill-treatment was of such a nature or extent as would drive Chanda to commit suicide. The prosecution has failed to establish live link between the alleged harassment, ill-treatment and the suicide. 13. The evidence that suicidal tendency runs in the family of Chanda cannot be ignored. Concededly, both the father and the brother of the deceased Chanda committed suicide by consuming poison. This Court can take judicial notice of the fact that suicidal tendencies do run in families and the medical science has accepted and recognised the existence of such tendencies and propensities. The defence that Chanda was not happy in her marital life for reasons unconnected with the conduct of the accused, is a real possibility. In any event, the prosecution has not proved offence under Section 306 of the IPC beyond reasonable doubt. In so far as the offence punishable under Section 498A of the IPC is concerned, the alleged disclosures made by Chanda to her relatives are not admissible in evidence since the cause of death is no longer in issue. The alleged disclosures are not admissible under Section 32(1) of the Indian Evidence Act. Suffice it to refer to the judgments of the Hon'ble Apex Court in Bhairon Singh Vs. The alleged disclosures are not admissible under Section 32(1) of the Indian Evidence Act. Suffice it to refer to the judgments of the Hon'ble Apex Court in Bhairon Singh Vs. State of Madhya Pradesh, 2000 SCC 80 and Kantilal Martaji Pandor vs. State of Gujarat and another reported in (2013) 8 SCC 781 . Other than the disclosures made by Chanda to P.W.1 and other relatives, there is no other evidence to bring home the charge under Section 498A of the IPC. The accused are also entitled to be acquitted for offence punishable under Section 498A of the IPC. 14. In order to keep the record straight, the mother of the deceased Chanda (P.W.2) filed on record an affidavit, paragraphs 3 and 4 of which read thus: “3. That the said appeal is pending for a long time and during the passage of time since my grandson who was about six months old at the time of incident was brought up by the Appellants and on and often he used to come to my house and stay with me and I also have visited the house of Appellants and stayed with them on account of our relation. Since then the relationship between myself and the Appellants and his family members has improved and in fact we had forgotten that any such incident had occurred. 4. That now as the matter is ready for final hearing, it has been realized by me that I have already lost my daughter and do not want to spoil the future of my grandson in case the matter is pursued further against the Appellants. In view of our relationship and future prospects of my grandson Aditya, I do not wish to pursue the present matter against the Appellants, and pray to this Hon'ble Court that I may be allowed to withdraw the complaint and consequently the Appellants may be set at liberty by setting aside the Judgment and Order of conviction recorded by the trial Court. As such I am swearing this affidavit in support of the Appellants.” 15. This Court passed an order on 21-12-2017, which reads thus: “The appeal is part heard. 2. Today, Smt. Shardabai Dhanraj Wankhede, the mother of the deceased Chanda, who is the informant/complainant is present alongwith Aditya Dilip Tale, the son of accused 1 and deceased Chanda. 3. As such I am swearing this affidavit in support of the Appellants.” 15. This Court passed an order on 21-12-2017, which reads thus: “The appeal is part heard. 2. Today, Smt. Shardabai Dhanraj Wankhede, the mother of the deceased Chanda, who is the informant/complainant is present alongwith Aditya Dilip Tale, the son of accused 1 and deceased Chanda. 3. Smt. Shardabai has filed on record an affidavit stating that she did not wish to prosecute the complaint and that the accused be set at liberty by setting aside the judgment and order of conviction. 4. The application shall be considered on its merits at the time of final disposal of the appeal. 5. It is however, recorded that this Court has interviewed both the deponent Smt. Shardabai and the son Aditya in order to satisfy the conscious of the Court that the desire to withdraw the complaint is bonafide and not induced by the extraneous consideration. Having interviewed the mother and the son of the deceased, the desire to compound appears to be genuine and bonafide. However, the application shall have to be considered at a later stage since offence punishable under Section 306 of IPC is non-compoundable. 6. List the appeal tomorrow.” 16. In view of the finding recorded that the prosecution has failed to prove offence punishable under Section 306 read with Section 34 and 498A read with Section 34 of the IPC, no further consideration of the affidavit is necessary. 17. The judgment and order impugned is set aside and the accused are acquitted of offence punishable under Section 306 read with Section 34 and Section 498A read with Section 34 of the IPC. 18. The bail bonds of the accused shall stand discharged. 19. Fine paid by the accused, if any, be refunded to them. 20. The appeal is allowed and disposed of accordingly.