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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 850 OF 2006
Bharat Pandurang Patil .. Appellant (Orig.Accd)
The State of Maharashtra .. Respondent Mr.Murtuza Najmi with Ms.Anjali Waghmare for Appellant
Mr.S.A.Shaikh APP for Respondent-State CORAM: N.D.DESHPANDE, J
DATE: 7th April, 2011
1. This Appeal impugns the correctness of the judgment of conviction and order of sentence both passed by the learned 3rd Ad- hoc Additional Sessions Judge, Palghar on 7th September, 2006 in Sessions Case No.322 of 2001. By the impugned judgment, the appellant/accused who is husband of deceased Yogita @ Mina was found guilty and convicted - 2 -
under section 306 of IPC abetment of suicide and sentenced to suffer R.I. For 3 years and fine of Rs.3000/- i.d. R.I. For six months and section 498-A IPC husband or relative of husband of a woman subjecting her to cruelty and sentenced to suffer imprisonment for 10 years and fine of Rs. 5000/- i.d.R.I. for one year. Yogita @ Mina died due to poisoning.
2. The appellant was earlier on bail during trial was taken into custody after the impugned order of conviction and is reported to be in jail.
3. The points raised in the appeal by the defence is that without recording any specific finding on the point of suicide due to poisoning the learned trial court convicted the appellant for the charge of abetment of suicide in the backdrop of - 3 -
certain evidence stating about the alleged cruelty during 1995 to 2nd May, 2001 and harassment by the appellant and as such, according to the defence there is no direct or convincing evidence on both charges of abetment of suicide so also charge of cruelty.
4. In the light of above submissions, I have examined the impugned judgment of conviction and the relevant findings. With the assistance of learned APP I have also gone through the relevant part of evidence both oral and medical evidence, including post mortem report and C.A. Report as the case involves death due to poisoning.
5. In order to appreciate the submissions of the learned counsel for the appellant, the relevant prosecution story as disclosed in the impugned judgment is reproduced below: - 4 -
That one Sahebrao Nago Patil resident of Nakane, Dhule lodged report on 2.5.2001 in Manikpur police station about the death of his daughter which occurred due to abetment to commit suicide by the accused. It is mentioned in the said report that said complainant resides on the aforesaid address along with his wife Sindhubai and son Chandrakant and was in service as Asst. Sub Inspector at Sindhakheda District Dhule. He had two daughter namely one Meena @ Yogita and another Chitrakala. The elder daughter Meena @ Yogita was married with Bharat Pandurang Patil resident of Singave, Taluka Shirpur District Dhule. The said marriage was solemnized in the year 1993. In the said marriage, he had given dowry of Rs. 51,000/-. At the time of said marriage, the son in law had no service and hence he was residing at native place and his daughter - 5 -
Meena @ Yogita was residing withthe complainant and she had completed D.Ed and B.Ed. Then, in the year 1995-96 the son in law Bharat Patil was taken to Manikpur, Vasai by his relatives for the purpose of his service. By that time the education of his daughter Meena was completed and hence she had also gone with Bharat Patil to Manikpur, Vasai. He had given Rs.15,000/- to son-in-law Bharat Patil for getting the job to his daughter Meena. Meena got job in Lokmanya Vidyalaya, Matunga, Mumbai as teacher and son-in-law Bharat Patil was doing the job in a private firm. His daughter Meena begotten a son out of the said wedlock and his name is Mayur who was five years old at the time of lodging the report. He mentioned in the said complaint that his daughter and son-in-law were residing happily and they were having visiting terms with him and at that time - 6 -
there were no quarrels or disputes or differences between them.
6. It is further mentioned in the said report that in the month of February 2001 on 1st or 2nd February he had gone to Vasai to the house of Bharat Patil to give invitation of engagement ceremony of his son Chandrakant which was to be solemnized on 4.2.2001. the son in law Bharat Patil and daughter Meena @ Yogita both came straight way to village Zodage for the purpose of engagement ceremony. At that time Bharat Patil poisoned the ear of the father of the bride of Chandrakant against the complainant and his son and made their defamation. After the said ceremony was over the complainant along with son in law and other family members went to Dhule. There also the son-in-law made his defamation by using insulting words and also quarreled with him - 7 -
on the count of journey expenses to the tune of Rs.1700/-. He tried to convince his son- in-law but he was not paying heed. Then, he i.e accused took his wife and son and went to S.T.stand for going back to Vasai. At that time he had given Rs.500/- to his daughter Yogita. However, on that count the accused quarreled with his daughter and he returned from S.T.stand and threw the said money in the compound of complainant s house and went away. While going away, the accused threatened to defame him in the society as well as in their relatives.
7. It is mentioned in the said report that after the said incident, his daughter used to phone him from her school and used to tell him about the ill treatment given by her husband Bharat Patil. It is further mentioned in the said report that his daughter also told him many times about the - 8 -
ill treatment which was given to her prior to the said incident of engagement ceremony.
8. It is further mentioned in the said report that on 30.4.2001 the complainant an his younger son-in-law by name Sanjay Bhaidas Patil resident of Arnala Taluka Vasai went to the house of accused Bharat Patil for giving the invitation of marriage of Chandrakant. They reached at the house of Bharat Patil at Vasai around 4.30 p.m. At that time Bharat Patil, daughter Meena were present. It is mentioned in the report that at that time in their presence the accused threatened his daughter Meena that if she wants to attend the said marriage,then she will have to give divorce thorough the Advocate and then she could go for the said marriage. At that time said accused Bharat Patil also abused and used insulting words in presence of younger son-in-law and his - 9 -
daughter Meena. However, he did not retort to it. Then after giving the wedding invitation card the complainant and his younger son-in-law came back to Arnala. Then, around 10 p.m. At night, daughter Meena @ Yogita phoned the complainant that her husband Bharat Patil was beating her and he should come to see her if he wants to see her alive. However, as it was night and as the son-in-law had used insulting words, the complainant had not gone to her house. Then on the same night around 10.20 p.m. the sister of Bharat Patil by name Sangita Patil phoned at Arnala and thereby informed them that Meena @ Yogita had consumed poison and she was admitted in Bungli hospital and hence the complainant along with Sanjay Patil and Satish Patil went to Bungli hospital. At that time Meena was kept in ICU and she was unconscious and hence he could not tell to her. Then on 1.5.2001 till 5 - 10 -
p.m. There was no change in her condition and she became critical. hence, doctor advised them to shift her to Bhaktivedant Hospital,Mira Road and accordingly she was shifted to the said hospital and while treatment was going on the said hospital on 2.5.2001 in morning at 4 a.m. She died. Hence, the complainant went to police station and lodged the report for subjecting his daughter to physical and mental ill treatment and abetting her to commit suicide. It is further mentioned in the said report that Bharat Patil had sent the letters in which insulting and defamatory words were used and he will produce those letters later on.
9. In view of the said report dated 2.5.2001 C.R.NO.I.115/2001 was registered in Manikpur police station under section 306, 498-A 504, 506 IPC against the accused Bharat Patil only.
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10. It reveals from the record that in view of= the said FIR the Investigating officer went to the spot and he prepared spot panchanama, inquest panchanama and sent the body of post mortem and recorded statements of witnesses. So also collected the letters from complainant and sent the disputed letter dated 11.2.2001 written by the deceased to her parents to hand writing expert along with her notebook. It further reveals from the record that the investigating officer sent viscera bottles to forensic science laboratory and collected reports. It further reveals that he arrested the accused and after due investigation filed charge sheet in the court of Judicial Magistrate, First Class, Vasai.
11. After the case of the accused was committed to the court of Sessions for trial - 12 -
the prosecution examined in all nine witnesses. The appellant denied all allegations of cruelty and harassment levelled against him by father of Yogita who himself was A.S.I. And started malacious prosecution. After two days of the incident knowing that Yogita consumed some medicines as she was annoyed and angry with her father who refused her invitation for dinner. The appellant was having a brother who was handicapped and therefore was not ready to live with him in the matrimonial house.
12. I have gone through the relevant evidence of complainant. Admittedly there was no demand of dowry. The complainant did not depose about dowry of Rs.50,000/- paid in marriage so there is no question of any harassment on this ground. It is also seen that there was no complaint of harassment or cruelty to which she was allegedly subjected - 13 -
till she died for a period of eight years. As such, there will be no question of drawing any presumption against appellant under section 113-A of Indian Evidence Act.
13. Admittedly, there is no direct evidence of cruelty. The witnesses examined in this case are near relatives and therefore, interested witnesses but it is not a disqualification as a witness in case their evidence inspires confidence. Such evidence requires close scrutiny. It is seen that there is no evidence of payment or demand of dowry in marriage and thereafter. The complainant also admitted that Rs.1700/- which was allegedly paid to him as travel expenses was not accepted and thrown away by the appellant because at the material time there was some quarrel and exchange of words. Except vague allegations that she was not treated well and the appellant was - 14 -
beating her, there is no corroboration or other independent evidence to prove the said charge of beating as alleged.
14. One letter Exhibit 18 dated 11.2.2001 is placed on record but, it is held not duly proved and reliance cannot be placed on it since PW 8 Ravindra Vasantrao Kate handwriting expert did not support the prosecution case that it was in the handwriting of the deceased when compared with her note book.
15. In the light of above stated facts in my opinion, merely because the deceased Yogita died due to poisoning by consuming some medicines and according to the prosecution she committed suicide it cannot be said that it was the appellant-husband who abetted such act of suicide. There is nothing on record to show that at the time of suicide - 15 -
or poisoning, Yogita was alone in the house with a child Mayur aged 5 years and she telephone d to the sister of the appellant as to what she was doing. It was a act in a fit of anger and as such cannot be connected with various allegations made in the complaint made by father Sahebrao Patil PW
1. The testimony of the complainant is full of material omissions and improvements. Nothing is deposed by him about dowry given in marriage and there is nothing on record to show that there was demand by husband for dowry and cruelty by beating prior to the lodging of FIR.
16. I have no hesitation to accept the arguments of the defence that the said complaint came to be filed and law was set into motion because PW 1 Sahebrao Patil is a Police Officer and wanted to take revenge because he lost his daughter by her own - 16 -
17. The learned defence counsel relied on two decisions namely one reported in 2001 Cr.L.J. 4336 (Dasrath Sao and others vs State of Bihar) to support his contentions that for want of required corroboration to prove the charge of physical cruelty in cases where cruelty can amount to abetment of suicide. No past quarrels or disputes in matrimonial house can be directly connected to the tragedy as a result of suicide for alleging such adverse inference against the accused. The learned defence counsel also relied on a judgment of the Kerala High Court reported in 2006 Cr.L.J. 3480 (Devassia alias Roy vs State of Kerala). The said decision is on the point of conduct of the accused as under :
(A) Penal Code (45 of 1960) S.498-A cruelty - 17 -
to woman- Expression willful conduct means that conduct of accused must be likely to drive woman to commit suicide. It is not necessary that conduct must be intended to drive woman to commit suicide. Evidence showing that appellant-husband was guilty of willful conduct of physical abuse, ornaments pledging and drunkenness. No other circumstances shown which could drive wife to commit suicide. Cruelty can be said to have been established -conviction of accused proper. (Para 13)
B. Penal Code (45 of 1860) Ss.306, 107- Abetment of suicide Allegation that husband abetted commission of suicide by wife within 4 months of marriage-Act of cruelty attributed to husband cannot at all convey that he ever desired intended or contemplated consequence of suicide by his wife-Presumption under S.113-A of Evidence Act rebutted by circumstances that deceased was rushed to doctor by husband who promptly in formed her brother as also his own brother and made arrangements to take deceased to hospital-Intention to drive deceased to commit suicide cannot be inferred.Conviction under sec. 306 liable to be set aside.
18. In the present case, when the accused returned home and found that Yogita had consumed poisonous medicines and lying unconscious in the house, he immediately - 18 -
helped her by removing her to hospital and borne the hospital expenses and was consistently attending for her survival. Such conduct is no doubt relevant and during such period of treatment there was no complaint or whisper by complainant ASI of the alleged cruelty or any allegations. All that came into light only after two days of the incident i.e. after death. Thus, this can be viewed with suspicion and therefore all allegations about harassment and beating appears to be after thought only because he lost his daughter.
19. In a Criminal Appeal for the above said reasons re-appreciation of evidence is justified. In my opinion, there is no sufficient evidence or material brought on record to bring home the charge of cruelty leading to abetment of suicide. Appeal therefore deserves to be allowed. Hence, - 19 -
following order is passed:
(1) Appeal is allowed. The Appellant/Accused is held not guilty and is acquitted of the charges.
(2) The impugned judgment of conviction and order of sentence dated 7th September, 2006 is quashed and set aside. The appellant is acquitted of the charge under section 498-A IPC and under section 306 IPC. He shall be set at liberty if not required in any other case.
Appeal is accordingly allowed and disposed of.
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