Allowed

Anand Babruwan Kasbe v. the State of Maharashtra

Bombay HC11 Oct 2012APEAL/71/2000

Case brief

AI extract

What is this about?

In an appeal against conviction for cruelty and abetment to suicide, the High Court of Bombay (Aurangabad) acquitted the appellant. The court held that the sole testimony of the complainant was not corroborated by neighbors or the FIR and that the appellant's poverty and the social context of the deceased's situation did not establish intentional abetment beyond reasonable doubt.

What did the court decide?

Appellant acquitted of offences punishable under sections 498-A and 306 IPC; order of conviction and sentencing quashed and set aside.

Anand Babruwan Kasbe Vs the State of Maharashtra — Cheating and Forgery | Bombay HC (2012)

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criapl71-2000

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 71 OF 2000

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Anand s/o Babruwan Kasbe,
Age : 26 years, Occu. Labour,
R/o Mahatma Phulenagar, Ausa,
Tq. Ausa, District Latur

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APPELLANT

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VERSUS

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The State of Maharashtra

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RESPONDENT

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.....
Mr. A.N. Nagargoje, advocate (appointed) for
the appellant.

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Mr. R.P. Phatake, A.P.P. for the Respondent-State.

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.....

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CORAM : M.T. JOSHI, J.

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DATE OF JUDGEMENT RESERVED : 23rd August, 2012

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 DATE OF JUDGEMENT PRONOUNCED :11th October, 2012

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JUDGEMENT :

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1.The present appellant, who is convicted by

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the learned Sessions Judge, Latur for the offences

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punishable under section 498-A and section 306 of the

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I.P. Code and sentenced to undergo rigorous

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imprisonment for two years for the offence punishable

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under section 498-A and to suffer rigorous
imprisonment for five years and to pay fine of Rs.
1000/-, in default to suffer rigorous imprisonment

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criapl71-2000

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for six months for the offence punishable under
section 306 of the I.P. Code, has preferred the
present appeal.

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2.The present appellant Anand was released on
bail by this Court vide order, dated 3rd April, 2000,
passed in Criminal Application No. 290/2000.
Thereafter, however, he continuously remained absent.
The then learned Single Judge, therefore, ordered for
issuing warrant against the appellant. The
appellant, however, could not be found. Ultimately,
by order dated 21st June, 2012, another learned Single
Judge of this Court appointed Mr. A.N. Nagargoje,
advocate as amicus curiae to defend the case of the
appellant and ultimately, the arguments were heard by
me.

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3.In fact, the learned Sessions Judge had

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framed charges against present appellant Anand and

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the accused No. 2 i.e. his father Babruwan for the
offences punishable under section 498-A read with

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section 34 of the I.P. Code and under section 302

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read with section 34 of the I.P. Code and in the
alternative for the offence punishable under section

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(3)

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criapl71-2000

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306 of the I.P. Code. Learned Sessions Judge
ultimately came to the conclusion that the charge of
commission of murder failed. Further, no offence was
proved against accused No. 2 Babruwan. However, so
far as the present appellant Anand is concerned, the
learned Sessions Judge held that the deceased –
Jaibai, the wife of the present appellant has
committed suicide on 20th May, 1999 due to cruel

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treatment given by the appellant to her. In the
circumstances, the conviction and sentence, as
detailed supra, came to be recorded.

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4.Deceased Jaibai died due to 100% burn

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injuries without making any dying declaration. During

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the relevant period, she used to reside with her
mother Bholabai, the complainant in the present case.
The admitted facts are that deceased Jaibai, upon her

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separation from her first husband having two

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children, had performed gandharva marriage with the
present appellant. During cohabitation while residing

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in the house of the appellant, she delivered two
daughters. The house of complainant Bholabai is just
10 to 12 feet away from the house of the appellant in

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(4)

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criapl71-2000

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Mahatmaphulenagar locality, Ausa, District Latur.

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The son of Bholabai i.e. Brother of Jaibai, due to
matrimonial problems, committed suicide. During the
same period, the appellant also married for second
time to one Sarika. Complainant Bholabai had become
old and in such situation, deceased Jaibai started
residing in the house of her mother. It is the
prosecution case that the physical relations between

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Jaibai and the appellant continued, giving birth to
her daughter by Jaibai just a fortnight prior to the

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present incident, as is deposed by PW1 Bholabai
during her evidence. There is no cross-examination
on this aspect to her. Similarly, learned Sessions
Judge did not specifically put any question in this
regard to the appellant while recording his statement
under section 313 of the Code of Criminal Procedure.

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Similarly, the other witnesses who resided in the
neighbourhood have deposed that the deceased had
given birth to third daughter from the present
appellant and that was not disputed by any cross-

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examination. In the circumstances, it can also be

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held an admitted fact that deceased Jaibai, a
fortnight prior to the present tragic incident, gave

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(5)

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criapl71-2000

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birth to the third female child out of continued
physical relationship between the deceased and the
appellant.

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5.In this situation, PW1 Bholabai, a 60 years

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old lady filed FIR (Exhibit-16). The gist of the FIR
is as under :-

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.That, deceased Jaibai used to carry labour

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work. On 19th May, 1999, there was nothing to eat in

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her house. In the circumstances, the daughters of

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Jaibai started weeping. Jaibai, therefore, went to

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the house of appellant Anand at about 10.30 p.m. She
narrated that the children were starving and,

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therefore, he should supply food to them. At that

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time, Babruwan i.e. Accused No.2 challenged her and

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gave one slap. Therefore, deceased Jaibai returned

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to the house. In the midnight at about 12.00 to 1

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O’clock, Jaibai again went to the house of the

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appellant and again made a demand for food. At that

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time, however, the appellant started beating her with

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kicks and fists. He abused her and took her to the

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house of PW1 Bholabai and continued to beat her.

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When complainant Bholabai tried to intervene, he

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(6)

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criapl71-2000

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pushed her away. Thereafter, he took the deceased in
the house of complainant PW1 Bholabai, poured
kerosene from the container and set her on fire by a
matchstick. The complainant Bholabai, therefore,
started crying and brought all the children from the

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house. The eldest daughter of the deceased had
suffered some burn injuries. Some neighbours came
there. However, the deceased was in flames and
ultimately, she died.

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6.On the basis of this complaint dated 20th
May, 1999, the offences punishable under section 302,
323, 504 read with section 34 of the I.P. Code came
to be registered.

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7.PW5 - PSI Vithal Lathe conducted the

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investigation in the case. Besides usual

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investigation of recording panchanama of spot of
occurrence, taking the dead-body to the hospital,
securing post-mortem report, etc., the Investigating

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Officer recorded additional statement of complainant
Bholabai and the statements of witnesses i.e. the
neighbours. This investigation, however, showed that

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criapl71-2000

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(7)

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deceased Jaibai was not murdered by the appellant but

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she committed suicide due to the cruel treatment

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given by the appellant as her husband. In the
circumstances, accordingly chargesheet came to be
filed.

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8.Before the learned Sessions Judge, in all

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five witnesses were examined. Those included PW1
Bholabai – complainant i.e. the mother of the
deceased, PW2 Vandanabai Pund, one of the neighbours,

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PW3 Muktabai Kasbe, PW4 Angad Kamble, who are the
neighbours as well as relatives of the deceased.
These neighbours, however, partly supported the
prosecution case. As regards relatives of the
deceased and the appellant, they did not support the

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prosecution regarding the case of continuous
illtreatment allegedly given by the appellant to the
deceased by making demand of money for liquor. Some

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of them, however, supported that the deceased used to
demand something for eating from the appellant and
sometimes, there used to be bickerings between them.

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PW1 Bholabai, however, deposed that after

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(8)

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criapl71-2000

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some initial period, the appellant used to beat the
deceased over demand of money for the purposes of
liquor drinking. According to her, sometimes

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deceased used to give money, but on failure to give
money, the appellant used to beat her. In the
circumstances, she also narrated the prosecution case
that after a fortnight of the delivery of the third
female child, due to hunger, the deceased had twice

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visited the house of the appellant in the night. The
appellant, however, beat her but the rival wife of

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the appellant had mediated. Thereafter, however, the
accused forced her to be in the house of the
complainant, latched the house from inside and went
away, wherein the deceased was found in flames.

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9.Learned Sessions Judge finding that PW1
Bholabai is illiterate, infirm and old lady, did not
accept the defence of absence of complaints of ill-

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treatment allegedly given by the appellant earlier in
the FIR. The learned Sessions Judge found that there

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is candid statement of complainant Bholabai coupled

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with partial support of the witnesses from the
neighbourhood that the deceased used to visit the

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criapl71-2000

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(9)

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appellant for food and there used to be bickerings,
particularly in the background that the deceased
twice went to the appellant for food to the starving
children, when she had delivered a third female child
only a fortnight ago. Learned Sessions Judge found
that there is abetment to the commission of suicide

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by the deceased from the appellant. In the
circumstances, the appellant came to be convicted and
sentenced as detailed supra.

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10.Mr. A.N. Nagargoje, learned counsel
(appointed for the appellant) submits that the

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statements of the witnesses, the admitted evidence on record would show that while the appellant also worked as labour, his father admittedly, during the relevant period, was a hamal working at a public bus stand. In the situation, not only deceased Jaibai or

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her mother complainant Bholabai, who were residing

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separately, were poor, unable to fend themselves, the
present appellant and his father were also sailing in

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the same boat. In the circumstances, according to
him, the learned Sessions Judge mis-directed himself
out of sheer sympathy towards the deceased and the

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(10)

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criapl71-2000

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old lady i.e. Complainant Bholabai who had nothing to

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eat even in the background that a fortnight prior to
the tragic incident, the deceased had delivered a
female child and could not have gone to carry the
manual work. He submits that taking into
consideration the social and economic strata from
which the unfortunate deceased lady as well as the
present appellant have come, the learned Sessions

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Judge ought not to have recorded a finding that the
appellant has abetted the commission of suicide of

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the deceased by previously cruelly treating her and
particularly on the day of the incident, giving her
cruel treatment with an intention to abet commission
of suicide.

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11.He further submits that the evidence on
record would clearly show that PW1 complainant
Bbolabai has exaggerated her version. The FIR is
conspicuously silent regarding any previous ill-

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treatment and only during recording of the
supplementary statement, the said facts were brought

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on record. He further submits that the witnesses
residing in the neighbourhood did not support the

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(11)

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criapl71-2000

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prosecution case though some of them are the
relatives of deceased Jaibai. In the circumstances,
Mr. Nagargoje submitted that the pathetic condition

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of the deceased and PW1 Bholabai has ultimately
caused the learned Sessions Judge to convict the
appellant who allegedly refused to provide food to
the deceased but without taking into consideration
the economic condition of the appellant and his

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father. In the circumstances, he submits that the
appellant be acquitted of the offences.

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12.On the other hand, learned A.P.P. Mr.
R.P. Phatake submitted that there is sufficient

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evidence to show that the present appellant, after
performing the second marriage, used to beat deceased

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Jaibai for supply of money for drinking liquor. On
the day of incident, the behaviour of the appellant

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of beating his wife i.e. deceased Jaibai, who had

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delivered a female child just a fortnight ago and was

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begging for food for starving children, would go to

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show that he has committed an offence punishable

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under section 498-A of the I.P. Code soon before the
commission of suicide by the deceased and as such,

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(12)

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criapl71-2000

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the learned Sessions Judge has rightly convicted the
appellant for the offence punishable under section
498-A of the I.P. Code, so also under section 306 of
the I.P. Code.

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13.On the basis of above material, the
following points arise for my consideration :-

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(i)Whether the prosecution has proved that the
appellant has treated deceased Jaibai with
cruelty during their cohabitation and also
on 20th May, 1999, of such a nature and
gravity so as to drive the deceased to
commit suicide ?

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(ii)Whether the prosecution has proved that the
appellant has intentionally abetted the
commission of suicide by deceased Jaibai ?

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(iii)What order ?

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14.My findings to the points No. 1 and 2 are in
negative. The appeal is, therefore, allowed and the

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(13)

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criapl71-2000

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appellant is acquitted of all the offences of which
he was convicted.

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REASONS :

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15. The evidence on record depicts a pathetic picture so far as deceased Jaibai and PW1 Bholabai – complainant are concerned. It would show that deceased Jaibai was abandoned by her husband and had performed a gandharva marriage with the appellant and had three female children from him. Her only brother has committed suicide due to matrimonial dispute and, therefore, she returned to her mother’s house to support the old mother. Her relations with the appellant, who was residing just 10 to 15 feet away from the house of her mother, however, continued.

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While PW1 Bholabai, the mother of the deceased had,
in her FIR, claimed that she was an eye witness to

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the setting of deceased Jaibai on fire by the
appellant, which utterly failed in view of her own
deposition in the court, as she merely deposed, in

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the light of her supplementary statement, that the
appellant used to ill-treat the deceased during their
cohabitation on demand of money for supplying liquor,

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criapl71-2000

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etc.

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16.PW2 Vandanabai Pund’s husband Dhondiram is

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the distinct cousin of Jaibai as has been admitted by
her (Vandanabai) during her cross-examination. In
her deposition while she supported the prosecution
case that sometimes the deceased used to demand food

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from the appellant and there used to be some
bickering between them, she did not support the
prosecution case that the appellant used to beat
deceased Jaibai and used to demand money for the
purpose of liquor drinking from the deceased. The
contradictory statement of Vandanabai purported to
have been made by her to the Investigating Officer,
was not agreed by her in the cross-examination at the
hands of prosecution. She, however, was categorical
in stating that after the third delivery, deceased
Jaibai was suffering from starvation while PW1
Bholabai was unable to do any work and the deceased

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used to demand something for eating from the
appellant.

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17.PW3 Muktabai Hanmanth Kasbe though has

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supported the prosecution on almost all the aspects

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(15)

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criapl71-2000

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including the fact that deceased Jaibai had to do
manual work and PW1 Bholabai was unable to carry any
work and they were not having anything to eat during
the relevant period, she has refused to accept that
the appellant used to beat Jaibai for demand of money
for liquor drinking. The husband of this

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lady/witness is admittedly maternal uncle of deceased
Jaibai.

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18.PW4 Angad Kamble, the last of the

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neighbours, examined by the prosecution also deposed
on the similar line. During the relevant period,

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this witness was a municipal councilor and the
neighbour of the deceased as well as the appellant.
He, however, pleaded ignorance regarding the
relationship between the deceased and the appellant
or cruel treatment at his hand.

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19.The defence was that Hanmanth Kasbe i.e. the
husband of PW3 Muktabai residing in the neighbourhood
had filed a civil suit against the appellant’s father

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regarding some alleged encroachment by him. Though
Muktabai pleaded ignorance regarding the same, PW4
Angad accepted that such a suit was pending. It was

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criapl71-2000

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the defence that said Hanmanth Kasbe has instigated
the poor and helpless complainant Bholabai to file a
false complaint against the appellant on false
charges.

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20.The evidence on record thus would show that
while immediately filed FIR by PW1 Bholabai is silent
regarding any alleged previous cruel treatment to the
deceased at the hands of the appellant, she solely
supported the prosecution during trial on this count.
The rest of the witnesses though most of them are

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relatives of deceased Jaibai and complainant
Bholabai, however, refused to support this
prosecution case. The learned Sessions Judge
recorded a finding that PW1 Bholabai – complainant is
an old, poor helpless lady. The learned Sessions
Judge further found her statement to be a candid one
and relying over her testimony, the appellant came to
be convicted.

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21.The evidence on record would clearly show
that the deceased as well as the appellant were from
lower strata of the society living in abject poverty.
PW4 Angad, in his cross-examination at the hands of

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(17)

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criapl71-2000

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prosecution, has admitted that the appellant used to work as a labour. It is the prosecution case itself that his father was working as a hamal at the public bus stand. Deceased Jaibai who had delivered a female child just a fortnight ago of the tragic incident, had nothing to eat in the house while she was living with her old and helpless mother, complainantBholabai. She had twice visited the appellant in the

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night of the tragic incident. It is true that the
appellant ought to have been very sympathetic and
kind to the deceased in the background of her
delivery of third female child a fortnight ago.
However, if one takes into consideration all the
facts on record i.e. the poverty of both the deceased
and appellant that even the third child delivered by

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the deceased was a female one, which in the society
where the deceased and the appellant are belonging,
was seen as one of the baneful thing, driving the
deceased away from the house or giving some slaps to

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her by her poor husband i.e. the appellant, to my
mind, would not amount to abetment to the commission
of suicide by deceased Jaibai.

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(18)

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criapl71-2000

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22.The learned Sessions Judge has meticulously

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interpreted the word `abetment’, which is the main
ingredient of section 306 of the I.P. Code by
referring to the dictionaries and the various
authorities. It has been rightly concluded by
learned Sessions Judge that whether particular act
would amount to abetment i.e. provocation or
instigation to commit the offence, would depend on

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the facts of each case. Learned Sessions Judge found
that the sole testimony of PW1 Bholabai is sufficient

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to come to the conclusion that there was history of
ill-treatment to the deceased by the appellant.
Further, the tragic incident of the fateful day shows
that a starving wife who had just delivered a child
15 days ago was begging for food for her children,

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but the appellant was instead, beating to her. In
this situation, the learned Sessions Judge held this
incident as cruelty and abetment to commit the
suicide. However, if we find that there is no
corroboration to the statement of PW1 Bholabai
without absence of the same in the FIR coupled with

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refusal to corroborate the said story by the
neighbouring witnesses most of whom are the near

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(19)

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criapl71-2000

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relatives of the deceased and particularly the abject
poverty of both the parties, it is difficult to
accept that the prosecution has proved beyond
reasonable doubt that the appellant used to treat the
deceased with cruelty and on the day of the incident,
he intentionally provoked the deceased Jaibai to
commit the suicide by the acts as alleged, as proved
by the prosecution. In the circumstances, points No.
1 and 2 are answered in the negative. The appeal,
therefore, deserves to be allowed.

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23.In the result, the appeal is allowed. The
order, dated 21st January, 2000, passed by the learned
Sessions Judge, Latur, in Sessions Case No. 127/1999,
convicting and sentencing the appellant for the
offences punishable under section 498-A and 306 of
the I.P. Code, is hereby quashed and set aside.
Instead, the appellant Anand Babruwan Kasbe is
acquitted of the offences punishable under section

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498-A and 306 of the I.P. Code. In the

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circumstances, the bail bonds shall stand cancelled.

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24.As Mr. A.N. Nagargoje, learned advocate, was

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appointed by this Court as amicus curiae to defend

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(20)

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criapl71-2000

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the case of the appellant, his fees is quantified to

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Rs. 3000/-.

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[ M.T. JOSHI ]

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 JUDGE

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npj/criapl71-2000

Anand Babruwan Kasbe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Anand Babruwan Kasbe v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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