If the aforesaid injuries were caused to the
deceased on the day of incident and deceased committed
suicide after giving of beating by the husband further
inference can be drawn against the accused and provision
of sections 106 and 114 of Evidence Act can be used
against
the
accused.
The
evidence
on
the
11
injuries
sustained by deceased before starting of fire gives
corroboration to the version of witnesses examined by
prosecution that accused used to give ill-treatment to the
deceased. These circumstances also can be used for
proving the case of prosecution that due to the ill-
treatment, beating, given by the accused, Sangeeta
committed
suicide.
When
there
is
such
evidence
interference can be drawn that there was ill-treatment of
such extent that there was no alternative before Sangeeta
then to put to end to her life. Thus, it can be inferred that
there was instigation as mentioned in Section 107 of
Indian Penal Code and it is a case of abetment to suicide
which is punishable under Section 306 of Indian Penal
code. In such a case, if prosecution proves that there was
such ill-treatment just prior to committing of suicide and
beating was given to the deceased by the accused, it needs
to be inferred that it is the case of abetment of suicide.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO.134 OF 2000
Versus
The State of Maharashtra.
: T.V. NALAWADE, J.
DATED CORAM : 15th September, 2014.
Citation; 2015 ALLMR(cri)158
The appeal is filed against the judgment and
order of Sessions Case No.218/1995, which was pending in
the Court of 2nd Additional Sessions Judge, Aurangabad.
The appellant is convicted and sentenced for offences
punishable under sections 306 and 498-A of Indian Penal
Code and sentence of rigorous imprisonment for three
years is given to the appellant and total amount of fine of
2.
The
complainant.
deceased
Sangita
Rs.1500/- is imposed on him. Both sides are heard.
2
was
a
daughter
of
She was given in marriage to appellant
about three years prior to the date of incident. It is the
case of complainant that after few days of marriage, the
deceased had started complaining to him and to relatives
on parents side that the husband and his relatives were
giving ill-treatment to her.
She had disclosed that her
husband had asked her to bring Rs.1000/ from her parents
as he wanted to purchase bed for him. She had also
disclosed that husband was harassing her and even giving
beating to her on petty counts.
3.
It is the case of complainant that the deceased
used to visit the house of her parents on the occasions of
festivals. On one occasion when she visited the house of
her parents, the parents had smell of kerosene from the
clothes of deceased.
She had then disclosed that her
husband had poured kerosene on her person and he
wanted to finish her. About three-four months prior to the
date of incident, she had returned to the house of parents
and she was complaining that her husband was giving
beating to her on petty counts. It is the case of
complainant that he had given sever beating and due to
beating there was swelling on her hand and there was
probably fracture injury. On that occasion she had stayed
for fifteen days in her parents house due to the said
incident. The appellant/husband had then visited the house
of complainant and as he had given undertaking to behave
well with the deceased, the deceased was sent back to the
matrimonial house. The deceased had again visited house
of her parents to attain the marriage ceremony of her
brother which was in the month of April.
4.
After the marriage of the brother, deceased was
residing in her matrimonial house. On 05/05/1995 father
of the appellant visited to the house of complainant at mid-
night. He informed that Sangita was admitted in hospital
and she had sustained burns injuries and was hospitalized.
Complainant went to the hospital but till that time Sangita
was dead. Complainant then gave report to police on
06/05/1995 and crime came to be registered for offences
punishable under Sections 306, 498-A, 34 etc. of Indian
Penal Code against husband-appellant and his relatives.
The
complainant
has
made
allegation
that
applicant/husband and his relatives had given illtreatment
to the deceased and due to ill-treatment Sangeeta commit
The
aforesaid
trial
5.
ig
suicide by setting fire to herself.
offences.
The
Court
framed
prosecution
charge for
examined 09
witnesses. Three witnesses were examined in defence. The
appellant took defence that it was accident and the
deceased had also disclosed to doctor that her clothes
caught fired accidentally. The trial court has not believed
the defence taken by the appellant and trial court believed
the
aforesaid disclosures
made by daughter of the
complainant and versions against the appellant.
6.
The complainant Horeshwarrao (P
.W.01) has
given evidence as per the aforesaid version given in the
F.I.R. and the F.I.R. is proved at Exh.13. The evidence of
.W.01 shows that right from the beginning, deceased was
complaining that there was illtreatment to the deceased
from her husband and husband used to give beating to her.
The evidence is given that husband used to beat to the
deceased and due to sever beating on one occasion there
was swelling to one hand of deceased. The complainant
has given evidence that on 24/4/1995 there was marriage
of his son. This marriage was attended by deceased and
appellant. He has deposed that on that occasion also ill-
treatment was given by appellant. Bablabai (P
.W. No.03)
mother of deceased has given similar evidence.
The
evidence of P
.W.1 Horeshwarrao Charlasrao Mane and
P
.W.2 Babalbai Horeshwarrao Mane shows that on one
occasion, they had smell of kerosene to the cloths of
deceased. The other evidence is mostly of the nature of
disclosures made by the deceased to them.
7.
The cross examination of P
.W.1 Horeshwarrao
and P
.W.2 Babalbai shows that both the witnesses have
stated some new things and those things were not stated
before
police in
F.I.R.
and police statement.
Those
omissions are duly proved by the defence.
6
In F.I.R. there
is no mention that the appellant had attended the marriage
of complainant's son in April 1995 and on that occasion
there was quarrel and appellant had given ill-treatment to
deceased. P
.W.01 Horeshwarrao has added new allegations
by saying that accused wanted that P
.W. 1 should accept
the daughter of uncle of accused in marriage for son of
complainant and as the daughter was not accepted,
appellant gave ill-treatment to deceased. This omission is
also duly proved. Though, there are said omissions in
respect of few circumstances stated in evidence by P
.W.01
Horeshwarrao and and P
.W.2 Babalbai in relation to their
previous the versions, these omissions have not created
reasonable doubt about their versions on ill-treatment.
The evidence of P
.W.01 Horeshwarrao and P
.W.2 Babalbai
shows that appellant used to give beating to the deceased
on petty counts and on one occasion they had noticed that
there was smell of kerosene to the clothes of the deceased.
It needs to mentioned that in the statement given
u/sec.313 of Code of Criminal Procedure, appellant has
admitted
that
he
had
attended
the
marriage
on
8.
24/04/1995.
Subhash (P
.W.04) brother of deceased has also
given evidence that deceased used to disclose to him about
the ill-treatment given by the appellant.
is the cousin of the deceased and his evidence
(P
.W.05)
Sushilkumar
shows that prior to four months of incident he had seen
injury on one hand of deceased and deceased had
disclosed to him that beating was given to her by
appellant. Evidence of Subhash (P
.W.04) shows that he has
added few things when those were not mentioned in the
statement given to police. There is also evidence of Vijak
s/o Charlasrao Mane, P
.W.06 uncle of deceased on ill-
treatment and which is similar to the evidence of these two
witnesses.
9.
The evidence of aforesaid witnesses shows that
incident took place within two weeks of the last visit of
Sangita to the house of her parents. Even if the omissions
mentioned above in relation to the previous statements are
considered and evidence in that regard is omitted from
consideration, the fact remains that all the witnesses have
given evidence that there were disclosures made by the
deceased to them about illtreatment from her husband.
There is the evidence given by them that on one occasion
they had seen one injury on the person of deceased and it
Their evidence also shows
was caused by the appellant.
that they had smell of kerosene to the clothes of deceased
on one occasion, when she had returned to parents house
due to such illtreatment.
The evidence of Dr. Rajendrakumar (P
.W.09),
10.
who conducted postmortem examination on dead body of
Sangita shows that he found five injuries on the dead body,
which were apart from burn and they were as under :-
(1)
Two cresentric abrasions of size 1 x1/4 cms. on
either side of neck on anterolateral aspect of upper
pat of neck.
(2) Abrasion of 4 cms x 31/2 cms, left maxilary area.
(3) Abrasion of 21/2 x 2 cms, on lateral of left eye.
(4) Abrasions of 3 x 2 cms, and “2 x 2 cms at right
side of neck below and lateral to cresentic abrasion.
(5)
Abrasion at right thigh upper part on lateral
aspect of 6 x 1⁄4 cms. directed above downwards.
All abrasions were redish brown, no scab found.
All the burns and other injuries were antemortem
On internal examination Dr. Rajendrakumar
11.
injuries.
found that there was contusion of size 3 x 2 cms at frontal
region. The case papers produced during evidence show
that there was bleeding from left ear of Sangita when she
was admitted in hospital. The medical evidence shows that
Sangita was pregnant and she was having male foetus of
seven months.
12.
Dr. Rajendrakumar has denied suggestion given
by defence that aforesaid injuries can be self inflicted. He
has also denied the suggestion that the aforesaid injuries
can be caused due to dragging of body on rough surface
(probably to take her out of room
caught fire).
where her clothes
Dr. Rajendrakumar has admitted that only
the injury mentioned in column no.19 in postmortem
report can be caused due to fall. The evidence on record
shows that the accused sustained burn injuries and he is
not disputing that he has present in room and he also
sustained injury.
In view of these circumstances, it was
necessary for the appellant to explain as to how Sangita
sustained aforesaid injuries. If there is no explanation,
these circumstances can be used against the accused. In
the statement given under section 313 of Code of Criminal
Procedure no such explanation is given by accused.
In
view of aforesaid circumstances adverse inference is
possible that it is accused who had caused injuries no. 1 to
5 on the day of incident to deceased.
about
aforesaid
injuries
gives
The evidence of
corroboration
to
the
disclosures of deceased that accused used to give beating
to her on petty counts.
13.
If the aforesaid injuries were caused to the
deceased on the day of incident and deceased committed
suicide after giving of beating by the husband further
inference can be drawn against the accused and provision
of sections 106 and 114 of Evidence Act can be used
against
the
accused.
The
evidence
on
the
11
injuries
sustained by deceased before starting of fire gives
corroboration to the version of witnesses examined by
prosecution that accused used to give ill-treatment to the
deceased. These circumstances also can be used for
proving the case of prosecution that due to the ill-
treatment, beating, given by the accused, Sangeeta
committed
suicide.
When
there
is
such
evidence
interference can be drawn that there was ill-treatment of
such extent that there was no alternative before Sangeeta
then to put to end to her life. Thus, it can be inferred that
there was instigation as mentioned in Section 107 of
Indian Penal Code and it is a case of abetment to suicide
which is punishable under Section 306 of Indian Penal
code. In such a case, if prosecution proves that there was
such ill-treatment just prior to committing of suicide and
beating was given to the deceased by the accused, it needs
to be inferred that it is the case of abetment of suicide.
14.
For proving that Sangita committed suicide
prosecution
has
relied
on
the
evidence
like
spot
panchanama prepared during investigation, postmortem
15.
report and CA report in respect of clothes of the deceased.
In the evidence of Jagannath (P
.W. 03) spot
panchnama
is
proved.
There
is
also
evidence
of
Investigating officer who recorded the spot panchnama at
ig
Exh.17 which was prepared on 06/05/1995. It is mentioned
that in the room/house of appellant there was traditional
fire place like “Chul” for which firewood is used and not
the stove for which kerosene is used. People keep can of
kerosene in the house for lightening the lantern and also
for starting of fire at the cooking place.
No stove was
found in the house. Pieces of partly burnt
deceased were found in the room.
Saree of
One can of kerosene
not having cap and containing some kerosene was found at
the spot.
Adjoining to the house there were houses of
neighbors.
16.
Panchnama of seizure of clothes found on the
dead body is proved in the evidence of witness Gangadhar.
Panchnama is at Exh.23. The clothes found on the dead
body and which were taken over from the spot of offence
26.
were sent to CA office with covering letter which is at Exh.
At Exh.36 there is CA report and it shows that
Kerosene was detected on those clothes.
Aforesaid evidence is sufficient to infer that
17.
kerosene was used for setting fire to the clothes of
deceased Sangita and it is a case of suicide.
It is not
disputed that Sangita died due to burn injuries which were
to the extent of more than 92%. It is already observed that
accused was present on the spot at that time and he has
not explained the aforesaid circumstance and also the
reason for which Sangita committed suicide. It view of the
provision 106 of Evidence Act, burden was on the accused
to explain the things, but the accused has not explained
the things. Therefore, inference needs to be drawn against
the accused under Section 114 of Evidence Act.
18.
If the postmortem report is perused and the
evidence of Dr. Rajendrakumar S/o Nivetirao Kagne is
considered, it can be said that there were burns injuries on
the head, neck, face, trunk anterior, trunk posterior, both
lower side of upper limb and lower limb and burn injuries
were present on the chest, abdomen, thigh and both upper
limbs. Thus, the burn injuries were present all over the
dead body. Thus the P
.M. report at Exh. 34 also gives
corroboration to the case of prosecution. There are
circumstances to infer that it is a case of suicide and burn
19.
injuries were not sustained accidentally.
Dr. Arun s/o Vishwambhar Marwale, defence
witness No. 1 has given evidence that history of burn
injury was given by the appellant, husband to the hospital
when deceased was admitted in hospital. His evidence
shows that however he made inquiry with the deceased
and obtained thumb impression of deceased when she was
conscious. This happened probably at 22.10 hours.
20.
Shri. Narayan Banderao Kunte, D.W. No.02
Police Head Constable has given evidence that as per the
information supplied to him by A.S.I. Sable on phone about
M.L.C. and accordingly he noted down M.L.C.. Thus, he
has no personal knowledge about contents of document
21.
Exh.51.
Shri. Rustumrao s/o Kondiba Sable, D.W. No.03
A.S.I. who had supplied information to Shri. Narayan
Banderao Kunte from Police Chowky attached to Civil
Hospital has given evidence that he made inquiry with
appellant and deceased and he recorded information at
He has admitted in the cross-examination that
Exh.55.
Exh.-55 is prepared as per the statement of Sangeeta. In
the cross-examination made by leaned APP for the State,
Shri. Rustumrao s/o Kondiba Sable again stated Sangeeta
had not supplied
the information mentioned by him in
Exh.55.
22.
Exh.55
was
created
at
22.10
hours
on
05/05/1995. This report does not bear signature or thumb
impression of deceased Sangeeta. Exh.51 was prepared by
Shri. Narayan Banderao Kunte on the basis of information
provided by Shri. Rustumrao s/o Kondiba Sable. Exh.51
was created at 22.30 hours. The case papers in respect of
admission and treatment of Sangeeta in government
(22.30
hours).
government
On
the
rubber
hospital show that the patient was admitted at 10.30 p.m.
stamp
was
used
on
paper, the time is shown 10.15 p.m. The
endorsement appearing on first page of Government
Hospital case papers show that doctor had advised to
ig
arrange for recording dying declaration. The case papers
show that Sangeeta was first examined in government
hospital at 10.45 p.m. on
05/05/1995.
First entry of
examination of Sangita shows that history was given by the
patient, but no history was given that it was accident.
General condition of patient was poor. There was evidence
of bleeding through left ear and there were blood stains on
face. The subsequent entry made at 10.50 p.m. shows that
patient was unconscious at that time and request was
made to doctor by police for permission to record
statement, but the statement could not be recorded as
patient
was
unconscious.
At
11.30
p.m.
also
she
unconscious. She did not regain consciousness till her last
breath. In the record it is mentioned that the death was
caused due to100% burn injuries.
The aforesaid record of case papers shows that
23.
17
the deceased was taken to hospital by appellant-husband.
The evidence on record is sufficient to show that deceased
was not in a position to talk and to disclose any history to
doctor or police. Nobody from side of parents of deceased
was present in the hospital at the relevant time. There was
bleeding through left ear, there were injuries, blood stains
on face and general condition was poor. The extent of
burns was more than 92%. In view of these circumstances,
this Court holds that it is not possible to believe the
defence of accused that the deceased had given history of
burn injuries and she had disclosed that she had sustained
burns accidentally.
In view of the aforesaid facts and
circumstances the Trial Court has rightly held that
deceased was not in a position to disclose anything. No
dying declaration could be recorded by the doctor who had
opportunity and the doctor had not given opinion that the
deceased was fit to give dying declaration.
24.
From the aforesaid evidence only one inference
is possible that Sangita committed suicide. The evidence
on record also shows that the deceased had not disclosed
to police that she had sustained burn injuries due to
accidental fire.
In the present case Sangita committed suicide
25.
within three years of marriage. It is appeal against
conviction for the offences punishable under Section 306
In such case actual abatement as defined in
of IPC.
Section 107 of IPC. is not required to be proved in view of
the provisions of Section 498-A of IPC and Section 113-A of
Evidence Act. Section 113-A of Evidence Act runs as
under:-
"113-A. When the question is whether the
commission of suicide by a woman had been
abetted by her husband or any relative or her
husband and it is shown that she had committed
suicide within a period of seven years from the
date of her marriage and that her husband or
such relative of her husband had subjected her to
cruelty, the Court may presume, having regard to
all the other circumstances of the case, that such
suicide had been abetted by her husband or by
such relative of her husband."
26.
From the wording of Section 113-A of Evidence
Act, (the word may) it can be said that the presumption
under Section 113-A is not mandatory presumption. The
provision further shows that such presumption can be
drawn after having regard to all other circumstances of the
case. In the case reported as “Ramesh Kumar Vs State
of Chhattisgarh” (AIR 2001 SC 3837) the Appex Court
has laid down that the term “all other circumstances of the
case used in Section 113-A of Evidence Act requires cause
and effect relationship between cruelty and suicide needs
tobe established before drawing the presumption. It is
further laid down by the Hon'ble Apex Court that
presumption is rebutable in nature.
27.
The provision of Section 498 (A) of Indian Penal
Code runs as under :-
"498-A - Husband or relative of husband of a
woman subjecting her to cruelty.-- Whoever,
being the husband or the relative of the husband
of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term who
may extent to three years and shall also be liable
to fine.
Explanation.-- For the the purpose of this section,
"cruelty” means --
(a) any willful conduct which is of such a nature
as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or
health (whether mental or physical ) of the
woman; or
(b)
harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful
demand for any property or valuable security or is
on account of failure by her or any person related
to her to meet such demand."
In the case reported as Girdhar Tawade Vs
28.
State of Maharashtra (2003 Bom. C.R. (Cri.) 575) the
Hon'ble Apex Court has made following observation.
"The basic purport of the statutory provision in
sec. 498-A is to avoid ‘cruelty’ which stands
defined by attributing a specific statutory
meaning attached thereto as noticed herein
before. Two specific instances have been taken
note of in order to ascribe a meaning to the word
‘cruelty’ as is expressed by the legislature :
Whereas explanation (a) involved three specific
situations viz. (i) to drive the woman to commit
suicide or (ii) to cause grave injury or (iii) danger
to life, limb or health, both mental and physical
and thus involving a physical torture or atrocity.
In explanation (b) there is absence of physical
injury but the legislature thought it fit to include
only coercive harassment which obviously as
coercive harassment which obviously as the
legislature intent expressed is equally heinous to
snatch the physical injury ; whereas one is patent,
the other one is latent but equally serious in
terms of the provisions of the statute since the
same would also embrace the attributes of
‘cruelty’ in terms of sec.498-A."
It is further observed by the Apex court at para Nos.16, 17 and
18 that in order to bring home guilt for offence u/sec.498-A of
IPC., willful act or the conduct of the Accused which have direct
29.
relations to the death, need to be established.
In Explanation to Section 498-A Indian Penal
Code, there are two words like “willful” indicating the
intentional conduct of the accused and “likely” indicating
that the accused is supposed to anticipate the effect of his
conduct. The word shows that the accused being husband
or relative of husband, if they are involved in such of case,
they can not be allowed to say that they had not
anticipated such reaction, of suicide of the deceased due to
their conduct of the ill-treatment.
They are the best
persons who know what kind of ill-treatment deceased was
receiving and at the relevant time what actually happened.
It is already observed that the provisions of Sections 106
and 114 of Evidence Act can be used against such accused
and so both the words - "willful” and "likely" need to be
read together. In the result the word “willful” cannot be
taken in strict sense of “intention” in such cases.
30.
In view of aforesaid position of law this Court
holds that evidence on record against the appellant is
more than sufficient to prove that he has committed the
offences punishable under Sections 498-A and 306 of
Indian Penal Code. Considering all other circumstances of
the case as mentioned in Section 113-A of Evidence Act,
this Court has no hesitation to hold that the presumption
available under Section 113 (A) of Evidence Act needs to
be drawn against appellant, husband of the deceased.
Thus, this Court sees no reason to interfere in the decision
of conviction given by the trial Court. On the point of
penalty, it can be said that, conviction of three years R.I.
already given by the trial Court is on lower side. Thus no
possibility of interference is there in the decision of the
trial Court on the point of penalty also.
31.
In the result appeal stands dismissed. The
appellant is to surrender to his bail bonds for undergoing
the sentence.
[ T.V. NALAWADE, J. ]
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