Allowed

Vishwanath Dnyanoba Borade and Others v. the State of Maharashtra

Bombay HC19 Mar 2014APEAL/125/2013

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for abetment to suicide and cruelty, the High Court acquitted the appellants, holding evidence insufficient to prove willful conduct for Section 498-A due to the valid first marriage and lack of proof regarding instigation or foresight for Section 306.

What did the court decide?

Conviction and sentence under Sections 306 and 34 IPC quashed; appellants acquitted; release from jail ordered; fine refunded.

Vishwanath Dnyanoba Borade and Others Vs the… — Murder and Culpable Homicide | Bombay HC (2014)

¶1

1 judgment in crappeal125-13.odt

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

¶3

CRIMINAL APPEAL NO.125 OF 2013

¶4

1] Vishwanath s/o. Dnyanoba Borade, age 25 years, occ.agri., r/o. Gotegaon, Tq.Kaij, Dist.Beed

¶5

2] Dnyanoba s/o.Vishwanath Borade, age 50 years, occ.agri., r/o.as above

¶6

3] Jyoti w/o. Vishwanath Borade, age 22 years, occ.household, r/o. As above

¶7

4] Bhimabai w/o. Dnyanoba Borade, age 45 years, occ. household, r/o. As above ..Appellants

¶8

Vs

¶9

The State of Maharashtra ..Respondent

¶10

Mr.S.B.Bhapkar, advocate for appellants

¶11

Mr.S.M.Jadhav, APP for respondent – State

¶12

WITH

¶13

CRIMINAL APPLICATION NO.2837 OF 2013 IN

¶14

CRIMINAL APPEAL NO.125 OF 2013

¶15

Lalita w/o. Dadasaheb Bolke

¶16

age 42 years, occ.household,
r/o.Gaurgaon, Tq.Kallamb,

¶17

Dist.Osmanabad..Applicant

¶18

2 judgment in crappeal125-13.odt

¶19

Vs

¶20

The State of Maharashtra
and others

¶21

Mr.S.B.Solanke, advocate for applicant

¶22

Mr.S.M.Jadhav, APP for respondent no.1 – State

¶23

Mr.S.B.Bhapkar, advocate for respondent nos.2 to 4

¶24

CORAM : P.N.DESHMUKH, J.
DATE : MARCH 19, 2014

¶25

ORAL JUDGMENT :

¶26

This appeal takes exception to the judgment
and order dated 11th March, 2013 passed by the
learned Addl. Sessions Judge, Ambajogai in
Sessions Case No.12 of 2012 thereby convicting the
appellants for offence punishable under Section
306 read with 34 of Indian Penal Code sentencing
to suffer R.I. for 10 years and to pay fine of Rs.
1,000/- each, in default, to suffer R.I. for 1
month.

¶27

3 judgment in crappeal125-13.odt

¶28

.Appellant No.1 – Vishwanath is husband of
deceased, appellant Nos.2 and 4 are parents of
appellant No.1 while, appellant No.3 – Jyoti is

¶29

first wife of appellant No.1.

¶30

.The case of prosecution, in brief, is that,
appellant No.3 Jyoti, first wife of appellant No.1
– Vishwanath, was not cohabiting with him and
therefore, his parents approached the father of
deceased – Devkanya with a marriage proposal and
informed that since the first wife of appellant
No.1 – Vishwanath was not cohabiting with him,

¶31

they wanted deceased – Devkanya to marry with
appellant No.1 – Vishwanath. After discussion,
the parents of appellant No.1 – Vishwanath agreed

¶32

to transfer five acres land in the name of

¶33

deceased – Devkanya and accordingly, their

¶34

marriage was solmanised. It is the case of
prosecution that about 1 to 1½ months after their

¶35

4 judgment in crappeal125-13.odt

¶36

marriage, Jyoti, first wife of appellant No.1 –
Vishwanath, came back for cohabitation and since
then, there was change in appellants’ behavior.
They started demanding back transfer of five
acres land, which was transferred in the name of
deceased – Devkanya. On that ground, deceased
Devkanya was illtreated. The parents of deceased
Devkanya then, used to convince the appellants and
had even informed them that the land of five
acres, which was transferred in the name of

¶37

Devkanya, may remain in the appellants’ name.
They, however, requested the appellants that
Devkanya should be properly treated. Inspite of
that, there was no improvement in the appellants’
behavior,whichresultedintoDevkanya’s

¶38

committing suicide by jumping into the well.

¶39

.After the death of Devkanya, information was
given to the police on 29th August, 2011 by the
cousin brother of appellant No.2 – Dnyanoba, to

¶40

5 judgment in crappeal125-13.odt

¶41

the effect that on that day, at about 6:30 am.,

¶42

Devkanya left the house to go for toilet, however,

¶43

she did not return and her footwear were lying

¶44

near the well. The report was investigated by
A.S.I. Bodkhe. On the same day, father of

¶45

Devkanya lodged a report alleging that Devkanya

¶46

has committed suicide due to illtreatment and

¶47

torture provided to her by the appellants. On the
basis of that report, offence came to be
registered being Crime No.99 of 2011 by Yusuf

¶48

Wadgaon Police Station for offence punishable
under Sections 498-A and 306 read with 34 of
Indian Penal Code.

¶49

.During the course of investigation, it
revealed that prior to the incident, the

¶50

appellants already got transferred the land, which

¶51

was earlier transferred in the name of deceased

¶52

Devkanya, back in the name of appellant No.1 –
Vishwanath, husband of deceased. The police

¶53

6 judgment in crappeal125-13.odt

¶54

collected all the relevant documents with
reference to said transaction and on completion of
investigation, filed charge sheet before learned
Judicial Magistrate F.C., Kaij.

¶55

.In the course of time, the case came to be
committed to the Sessions Court. Charge was framed
against the appellants for offence punishable
under Sections 498-A and 306 read with 34 of
Indian Penal Code to which, they pleaded not
guilty and claimed to be tried.

¶56

.Considering the evidence on record, learned
trial Judge convicted the appellants for offence
punishable under Section 306 read with Section 34
of Indian Penal Code and acquitted them of the
offence punishable under Section 498-A of Indian
Penal Code.

¶57

7 judgment in crappeal125-13.odt

¶58

2]Heard learned counsel for both sides. I have

¶59

also perused the evidence with the assistance of
learned counsel for both sides.

¶60

.Learned counsel for the appellants submitted
that deceased – Devkanya died of accidental death
when she had gone to the well for fetching water,
as she slipped her leg while lifting the water
from the well.

¶61

.According to the learned APP, deceased
Devkanya died of suicidal death due to the
illtreatment and torture provided to her by the
appellants.

¶62

3]In the background of above facts in the

¶63

appeal, firstly, I find it necessary to deal with
the offence punishable under Section 498-A of
Indian Penal Code. PW 1 – Lalita, mother of
deceased – Devkanya, appears to have stated that

¶64

8 judgment in crappeal125-13.odt

¶65

Devkanya was married to appellant No.1 –
Vishwanath and she died 8-9 months after her
marriage. She deposed about the appellants
approaching them with a proposal for marriage of
appellant No.1 – Vishwanath with deceased –
Devkanya, as Vishwanath’s first wife was not
cohabiting with him. At that time, the appellants
had assured that in the event, Devkanya is married

¶66

to Vishwanath, five acres land shall be
transferred in her name. Accordingly, after the
land was transferred, marriage of appellant No.1 -
Vishwanath and deceased – Devkanya was performed.

¶67

.PW 1 – Lalita further stated that while
Devkanya was cohabiting with Vishwanath, about one
and half months thereafter, Vishwanath’s first
wife Jyoti came for cohabitation with him and due
to that, the appellants started demanding back
five acres land, which was earlier transferred in
the name of Devkanya. PW 1 – Lalita further

¶68

9 judgment in crappeal125-13.odt

¶69

stated that on that ground, Devkanya was

¶70

illtreated which fact, was disclosed to her by

¶71

Devkanya when they had visited to her 5-6 days

¶72

after Nagpanchmi. At that time, they had

¶73

convinced her to cohabit with appellant No.1 –
Vishwanath. PW 1 – Lalita further stated that

¶74

they had also informed the appellants that the
land may be continued to be in their names,
however, they should maintain Devkanya properly.
She has stated that after 5-6 days thereafter,
information was received about death of Devkanya
due drowning in the well.

¶75

.According to this witness, deceased - Devkanya
died by committing suicide by jumping in the well
as she was subjected to torture by the appellants.

¶76

4]Evidence of PW 2 – Rambhau, uncle of deceased,

¶77

is that the deceased – Devkanya was daughter of
his brother, she was married to appellant No.1 –

¶78

10 judgment in crappeal125-13.odt

¶79

Vishwanath. This witness has corroborated the

¶80

evidence of PW 1 – Lalita of appellants
approaching with a proposal of marriage and
transfer of five acres land in her name. He has
further stated that after the transfer was
effected, Devkanya married to Vishwanath and she
started cohabiting with him at Gaurgaon, however,
2-3 months thereafter, as appellant – Jyoti, first
wife of Vishwanath, returned back and resumed
cohabitation with Vishwanath, relations amongst
the deceased and appellants became strained. The
appellants then started claiming five acres land
back, which was transferred in the name of
Devkanya.

¶81

.Rambhau further deposed that on this ground,
the deceased was illtreated by the appellants and
on 29th August, 2011, a telephonic message was
received by Dhondiram, grand-father of deceased,
informing about Devkanya’s death. He had further

¶82

11 judgment in crappeal125-13.odt

¶83

deposed about lodging of report by father of
Devkanya.

¶84

5]With reference to the charge under Section
498-A of Indian Penal Code, evidence of PW 7 –
Dhondiram, grand-father of deceased when perused,
reveals that the deceased was married to appellant
No.1 – Vishwanath as per the proposal, as deposed
by above witness. He further stated about first
wife of appellant no.1 – Vishwanath again resuming
cohabitation with him due to which, the appellants
started demanding back transfer of five acres land
by Devkanya. He further stated about the
information received on telephone about death of
Devkanya and his learning that the appellants have
got transferred five acres land back in their
names, which was transferred in the name of
Devkanya.

¶85

12 judgment in crappeal125-13.odt

¶86

.Evidence of PW 6 – Babasaheb, who is resident

¶87

of the complainant’s village Gaurgaon, tq.Kalamb,

¶88

reveals that he has stated that Devkanya was
married as stated above by other witnesses and
about having transferred five acres land in her
name. He has further deposed about returning of
first wife of Vishwanath due to which, the
appellants were demanding back five acres land and
illtreatment to Devkanya on that ground.

¶89

6]On considering the evidence on record as

¶90

above, it is noted that in the evidence of none
of these witnesses, there are specific allegations

¶91

of cruelty as required under the law, to be
established by the prosecution. The existence of
cruelty can not be proved merely because suicide

¶92

has been committed. Undoubtedly, to a large

¶93

extent the concept of “Cruelty” will be
subjective; but no claim of “cruelty” can be made
without an objective basis. Thus, merely because

¶94

13 judgment in crappeal125-13.odt

¶95

the victim has taken a drastic step of ending her
life, it can not be presumed that the treatment

¶96

that was being given to her was cruel, so as to

¶97

attract the punishment provided for, in Section
498-A of the Indian Penal Code. The explanation
to section 498-A of the Indian Penal Code makes it

¶98

clear that Cruelty means, “any willful conduct

¶99

which is of such a nature as is likely to drive a
woman to commit suicide or cause grave injury or
danger to life, limb or health (whether mental or

¶100

physical) of the woman”. The words “willful
conduct” and “likely to” used in Explanation
clause (a) are significant. The words “likely to”

¶101

used in the said clause show that clause (a) of
Explanation to section 498-A of the Indian Penal
Code requires the willful conduct to be of such a

¶102

nature as would likely to drive a woman to commit

¶103

suicide or to cause grave injury, or danger to

¶104

life, limb or health. As reactions of different
persons vary, the extent of cruel treatment needs

¶105

14 judgment in crappeal125-13.odt

¶106

to be objectively assessed in order to see whether
a reasonable or average person would be likely to
be driven to commit suicide or cause grave injury
to her on account of such treatment. At the cost
of repeatation, it may be emphasized that suicide
has been in fact committed, can not, by itself, be
considered as proof of cruelty.

¶107

.Similarly, deceased - Devkanya, admittedly,
was second wife of appellant No.1 – Vishwanath.
The basic requirement to attract the provisions of
Section 498-A of Indian Penal Code is that the
illtreatment should be at the hands of the husband

¶108

or his relatives. The deceased had married to
appellant No.1 – Vishwanath, however, it was not a
valid marriage in view of the admitted fact that
Jyoti, first wife of Vishwanath, was cohabiting
with him at the time of incident. In the light of
above, even otherwise, the provisions of Section
498-A of Indian Penal Code do not attract.

¶109

15 judgment in crappeal125-13.odt

¶110

7]Considering the above provisions, now, I deal

¶111

with the charge under Section 306 of Indian Penal
Code by keeping in mind the case of defence as
well as that of the appellants. The evidence of
PW 3 – Shahaji Pawar, spot panch, when considered,
establish that there was mud at the place of the
incident, which is a well. Even otherwise, the
incident took place on 29th August, 2011, which was
rainy season and thus, there is possibility of mud
surrounding the well. From the spot panchnama, it

¶112

appears that the well was constructed in cement
concrete with parapet wall of three feet height
from the ground level. The well was full of water
upto ground level.

¶113

.In this background, when the contents of A.D.
Exhibit 34 are considered, it revealed that on the
day of incident, Devkanya had left her house at
about 6:30 am. to go for toilet. However, she did
not return, but her footwear and the container

¶114

16 judgment in crappeal125-13.odt

¶115

which she carried for answering the nature’s call,

¶116

were found lying near the well. In view of the
contents of report as above, it appears that the
deceased had not gone to the well for fetching the
water as, it is not the case of prosecution that

¶117

any water pot was found near the well. Having
considered the fact that one tin container and a
pair of footwear were found near the well, there
is a possibility that the deceased died of an
accidental death while she attempted to fetch the

¶118

water by bending on the parapet wall which is
three feet high from the ground level as,
according to the evidence on record, the water in
the well was upto ground level.

¶119

.Above fact is, in fact, further substantiated

¶120

by PW 1 – Lalita, mother of deceased, who has

¶121

admitted that there was moisture at the well at

¶122

the time of the incident and further admitted that

¶123

though there were other wells surrounding the

¶124

17 judgment in crappeal125-13.odt

¶125

place of incident, the well at which the incident
occurred was having access to reach. She has
admitted that the deceased used to sweep cattle-
shed and also make dung cakes and was watering in
the cattle. She has admitted that water is needed
for these activities carried out by the deceased.
She further admitted that in the absence of
electric pump, the deceased used to fetch the
water by one water pot. She admitted to have
stated in her statement to the police that
deceased - Devkanya died due to fall in the well.
She admitted that death of Devkanya is accidental
death.

¶126

.In view of the evidence as discussed above and
referring to the spot panchnama, I am, thus,
inclined to hold that the prosecution has failed
to establish beyond reasonable doubt involvement

¶127

of the appellants for commission of offence

¶128

punishable under Section 306 of Indian Penal Code.

¶129

18 judgment in crappeal125-13.odt

¶130

.Moreover, there is absolutely no evidence to
indicate that, immediately prior to the alleged
suicidal death of deceased, she was instigated,
abetted by any of the appellants for commission of
the same.

¶131

8]By now, the law on the provisions of section
306 of the Indian Penal Code, is well settled. In
view of the facts of the appeal, I find it useful
to refer to the decision of the Apex Court in the
case of Sanju alias Sanjay Singh Sengar Vs. State
of Madhya Pradesh, 2002 Criminal Law Journal 2796.

¶132

In this case, the Supreme Court of India
extensively dealt with the concept of `abetment’
in the context of the offence punishable under
Sec. 306 of the Indian Penal Code. In that case,
the allegation against the accused-appellant
before the Supreme Court was that he had abetted
the commission of suicide of his sister’s husband

¶133

19 judgment in crappeal125-13.odt

¶134

– one Chander Bhushan. The facts appearing in the
reported judgment show that there were matrimonial
disputesbetweenNeelam-sisterofthe

¶135

appellant/accused-and her husband and that, in
connection with these disputes, the appellant had
allegedly threatened and abused the said Chander
Bhushan. Chander Bhushan committed suicide and the

¶136

suicide was attributed by the prosecution to the
quarrel that had taken place between the appellant
and the said Chander Bhushan, a day prior. It was

¶137

alleged that the appellant had used abusive
language against said Chander Bhushan and had told
him “to go and die”. The appellant, who had been
chargesheeted for offence punishable under Section
306 of the Indian Penal Code, filed a Petition
under Section 482 of the Code of Criminal

¶138

Procedure, for quashing the proceedings against
him, but his petition was dismissed by the High
Court. The petitioner had, therefore, appealed to

¶139

the Supreme Court. While allowing the appeal,

¶140

20 judgment in crappeal125-13.odt

¶141

Their Lordship of the Supreme Court, inter alia ,

¶142

observed as follows :

¶143

“Even if we accept the prosecution story that the appellant did tell the deceased to go and die’,that itself does not constitute the ingredient of instigation’. The word `instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of the mens rea, therefore, is the necessary concomitant of investigation.” (para 13 of the reported judgment).

¶144

9]The legal position that emerges from the above
discussion is as follows :

¶145

. Even if a person would commit suicide because

¶146

of certain acts of an accused, the accused cannot
be said to have abetted the commission of suicide
by the deceased, unless the accused would intend,
while causing torments to the victim/deceased, that

¶147

he should commit suicide. Even if the rigour of
this proposition is diluted, still, the least that

¶148

21 judgment in crappeal125-13.odt

¶149

would be required is, that it should be shown that the accused could reasonably foresee that because of his conduct, the victim was almost certain-or at least quite likely-to commit suicide. Unless that the victim should commit suicide, is either intended, or can be reasonably foreseen and expected a person cannot be charged of having abetted the commission of suicide, even if the suicide has been committed as a result of some of the acts committed by the accused. A perusal of the reported judgments show that even in cases where the accused had uttered the words such as " go and die ", in abusive and humiliating language, which, allegedly, led to the committing of suicide, it was held that it would not amount to instigation and that consequently, there would be no offence of abetment of suicide.

¶150

.Thus, there was a fundamental defect in the
prosecution case itself. It did not spell out any

¶151

22 judgment in crappeal125-13.odt

¶152

offence punishable under Section 306 of Indian
Penal Code.

¶153

10]Having construed the evidence and the law as
above, this appeal is liable to be allowed. Hence,
I pass following order :-

¶154

a]Criminal Appeal is allowed. The conviction
and sentence imposed upon the appellants by
learned Addl. Sessions Judge, Ambajogai, in
Sessions Case No.12 of 2012, for the offence
punishable under Section 306 read with 34 of
Indian Penal Code is quashed and set aside.
Appellants are acquitted of the said offences;

¶155

b]Appellant No.1 – Vishwanath s/o. Dnyanoba
Borade, who is informed to be in jail, be released
forthwith, if not required in any other case;

¶156

c]Bail bonds of appellant nos.2 to 4 stand
cancelled;

¶157

d]Fine amount, if paid, be refunded;

¶158

23 judgment in crappeal125-13.odt

¶159

e]In view of this judgment in Criminal Appeal,
Criminal Application No.2837 of 2013 for
cancellation of bail, does not survive and thus,
dismissed.

¶160

[P.N. DESHMUKH, J.]

¶161

kbp

Vishwanath Dnyanoba Borade and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Vishwanath Dnyanoba Borade and Others 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

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pralhad Sopan Salve and Others Vs the State of Maharashtra

Ambadas Yashwant Kamble Vs the State of Maharashtra

Gotya @ Yogesh Sarjerao Pardhe Vs the State of Maharashtra

The State of Maharashtra Vs Sakharam Walmik Bhopale

Siddharth Narayan Shirsath Vs the State of Maharashtra

The State of Maharashtra Vs Balaji Gangaram Kendre and Anr.