Criminal Appeal No. 212 of 2012

12th October, 2012

Petitioner Counsel: Shri SUDARSHAN J. SALUNKE
Respondent Counsel: Shri N.R. SHAIKH

Cases Cited:
Sohan Raj Sharma Vs. State of Haryana, 2008 ALL SCR 1304 =AIR 2008 SC 2108 [Para 12,13]
Shankar Mangelal Lokhande Vs. State of Maharashtra, 2000 ALL MR (Cri) 10 =2000 Bom.C.R. (Cri.) 554 [Para 13]
State of Maharashtra Vs. Nathu, 2012 ALL MR (Cri) 2959 [Para 13]

JUDGMENT

JUDGMENT :- The appeal is filed against judgment and order of Sessions Case No. 150/2011 which was pending in the Court of Additional Sessions Judge, Beed. The appellant is convicted and sentenced for offence punishable under section 306 of the Indian Penal Code. Both the sides are heard. This Court has perused the original record.

2. In short the facts leading to institution of the present proceeding can be stated as follows.

Deceased Sunita was a sister of complainant Timma and she was the wife of appellant / accused. Sunita was given in marriage to the accused about 12 years prior to the incident in question. The accused has two issues from the deceased. At the relevant time son of the deceased was aged about 11 years and the daughter was aged about 9 years. The accused was living with his family at Barshi naka in Beed. The house of complainant is also situated in that locality.

3. The accused is addicted to liquor. After having drink the accused used to harass and beat the deceased. The accused used to cause damage to household articles. On 05/05/2011, in the noon time the accused caused damage to T.V. set and other household articles after having drink. On 05/05/2011 the accused kept creating trouble to the deceased till night time. Many persons tried to convince him but he was not in the mood to listen to anybody.

4. On 06/05/2011 at about 10.00 a.m. Sunita consumed some poisonuous substance to commit suicide. She was shifted to Government hospital by nephew of complainant, Subhash and other neighbourers. When the complainant learnt about the incident, from place of work, he went to the hospital. Sunita died at about 10.00 p.m. in the hospital. Timma, the complainant gave report against accused on 07/05/2011 at about 12.00 noon. The crime came to be registered for offence punishable under section 306 of the Indian Penal Code in Peth Police station, Beed at Crime No.35/2011.

5. Post mortem was conducted on the dead body and Doctor gave opinion that death has taken place probably due to organo phosphorus poison. Viscera was sent to Chemical Analyser's office. No poison was detected in viscera.

6. The prosecution examined in all 9 witnesses to prove offence. The trial Court has believed the complainant and other prosecution witnesses. The trial Court has held that Sunita committed suicide by consuming poison and suicide was committed due to continuous harassment given by the accused.

7. Timma (P.W.1) has given evidence that the deceased had started living at Barshi naka Beed about 3 to 4 years prior to incident in question. He has deposed that he had seen that the accused used to pick up quarrel with deceased after having liquor. He has deposed that the accused used to give beating to the deceased and he used to cause damage to the household articles. The complainant has deposed that the deceased also used to disclose about ill-treatment which she received from accused. He has given particulars of incident dated 05/06/2011. He has deposed that on that day when the accused went out of control after having drink, he contacted brother of accused and others but the accused did not listen to anybody. He has given evidence that on that day the accused broke T.V. set and the household articles and gave beating to the accused. He has deposed that on 06/05/2009 he learnt from nephew Subhash that Sunita had consumed poison. He has given evidence that Sunita consumed poison due to quarrels which accused was picking up after having drink. F.I.R. given by complainant is proved as Exh. 27 and it is consistent on material points with the substantive evidence.

8. Sunder (P.W. 2) has given similar evidence. She has tried to add by saying that the accused used to give burn injuries by using cigarette to the deceased. She has deposed that such ill-treatment was given for about four years. She has given evidence on the incident dated 05/05/2011. Dashrath (P.W. 3) - a neighbor of accused has given similar evidence. Ramnath (P.W.4) - brother of complainant has also given evidence. Ramnath has tried to give different story that when he reached the house of deceased after learning about incident on 5th , the deceased disclosed to him that she had consumed poison due to harassment which she was receiving from the accused. In the cross examination he has even admitted that the deceased had become unconscious when he reached the house. His evidence shows that many persons had already gathered in the house of the deceased. Ramnath did not shift the deceased to the hospital and the persons who shifted deceased to the hospital are not examined. No other witness has given evidence on such dying declaration. In view of this circumstance, Ramnath cannot be believed in respect of his evidence on dying declaration. The evidence of Anusaya (P.W. 5) w/o complainant is similar to the evidence of the complainant.

9. The evidence of Anusaya (P.W.5) shows that from few months prior to the date of incident, the deceased had started working in the office of Municipality. The evidence of Dashrath (P.W.3) a neighbor shows that the accused used to ply auto rickshaw and the deceased used to do labour work. The evidence shows that both - the deceased and the accused used to remain out of house for work throughout the day. Thus it is not the case of prosecution that the deceased was not making any earning. The shed where the accused was living with the deceased belongs to the accused. Thus, it can be said that the common thing in the evidence of aforesaid witnesses is that the accused used to consume liquor, he used to pick up quarrels with deceased and he used to cause damage to the household articles.

10. Though one specific incident dated 05/05/2011 is described by the prosecution witnesses and they have deposed that in that incident accused broke T.V. set and caused damage to the household articles, there is no circumstantial evidence in support of this oral evidence. The spot panchanama at Exh. 15 was drawn on 07/05/2011. This document does not show that there was broken T.V. set in the house or some household articles were in damaged condition. When admittedly son of deceased was aged about 11 years at the relevant time, it was necessary for prosecution to give explanation as to why inquiry was not made with son and his evidence is not recorded. The son could have given evidence about incident dated 05/05/2011 and also incident dated 6th if any incident had taken place on that day. These are the lacunas in the case of the prosecution.

11. The evidence of prosecution does not show that the Police could recover bottle or box of any poison from the house of the accused. It is not case of the prosecution that the accused made such evidence to dis-appear. Dr. Sukhdeo Rathod (P.W. 7) has proved the post mortem report at Exh. 34. Though he has mentioned that the death took place due to organo phosphorous poison, in cross examination, he has admitted that even in case of food poison, similar symptoms are seen. Viscera was sent to Chemical Analyser's office. Chemical Analyser's report at Exh.33 does not show that any poison was detected in the viscera. The incident took place on 6th and Sunita died within 12 hours of shifting her to the hospital. Absence of poison in viscera is circumstance which can not be ignored. It was submitted for the State that due to stomach wash the poison must have been washed out. This submission is not acceptable as Sunita ultimately died allegedly due to poisoning. Thus, there is no convincing evidence on the cause of death.

12. Even if it is presumed that Sunita committed suicide on that day, it was necessary for the prosecution to prove that suicide was abated by the accused. The death took place after 12 years of the marriage and so presumption under section 113-A of the Evidence Act was not available. For proving of abatement of suicide, it was necessary for the prosecution to prove abatement as defined u/s 107 of the Evidence Act. On this point, for the appellant the case reported as AIR 2008 SC 2108 : [2008 ALL SCR 1304] (Sohan Raj Sharma Vs. State of Haryana) was cited. Apex Court has made observation at para 9 as follows.

9. "In State of West Bengal Vs. Orilal Jaiswal (A.I.R. 1994 SC 1418) this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the con science of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicided should be found guilty."

13. Reliance was placed on following two reported cases also.

(i) 2000 Bombay C.R. (Cri.) 554 : [2000 ALL MR (Cri) 10] Bombay high Court (Shankar Mangelal Lokhande Vs. State of Maharashtra).

(ii) 2012 ALL MR (CRI) 2959 Bombay High Court Nagpur bench (State of Maharashtra Vs. Nathu).

The facts and circumstances of each and every case are always different as observed by the Apex Court in the cases of Harilal Ostwal which is referred by the Apex Court in Sohanraj's case, [2008 ALL SCR 1304] cited supra. It needs to be proved that (i) there was ill-treatment to the deceased from accused and (ii) Cruelty meted out to the victim had in fact induced her to end her life by committing suicide. In the present case the evidence is short on these two points. It is already observed that the evidence is also not convincing on the cause of death. In view of these circumstances, this Court holds that the benefit of doubt needs to be given to the accused. Thus, the trial Court has committed error in holding the accused guilty of th offence punishable under section 306 of the Indian Penal Code and interference is warranted in the judgment and order of the trial Court. In the result, following order.

ORDER

The appeal is allowed.

The judgment and order dated 29/02/2012 of Sessions Case No. 150/2011 which was pending in the Court of Additional Sessions Judge - 3, Beed convicting and sentencing the appellant for offence punishable under section 306 of the indian Penal Code is hereby set aside.

The appellant stands acquitted of the offence punishable under section 306 of the Indian Penal Code for which he was charged and tried.

The appellant is to be set at liberty forthwith, if he is not required in any other case.

Fine amount if any deposited by appellant / accused, is to be returned to him.

Appeal allowed.