Allowed

Satish Digambar Dehere v. the State of Maharashtra

Bombay HC6 Sept 2021APEAL/773/1998

Case brief

AI extract

What is this about?

In an appeal challenging a conviction for abetting suicide and cruelty, the High Court at Bombay, relying on Supreme Court precedents, held that the prosecution failed to prove the connection between alleged harassment and the victim's suicide beyond reasonable doubt. The judgment set aside the conviction and acquitted the appellant.

What did the court decide?

Criminal Appeal allowed; Impugned judgment setting aside appellant's conviction is quashed; Appellant acquitted of all charges.

Satish Digambar Dehere Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.773 OF 1998

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Satish Digambar Dehere ] R/at. Phulenagar, Alandi Road, ] Yeravada, Pune, ] .. Appellant At present in Central Prison, Yeravada ] (Orig. Accused No.1.) Versus State of Maharashtra ] .. Respondent ] (Orig. Complainant)

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…... Mr.Shantanu R. Phanse, Advocate (Appointed) for the Appellant. Mr.R.M. Pethe, APP for the Respondent – State.

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CORAM : PRAKASH D. NAIK, J.

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DATED : SEPTEMBER 6, 2021.

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JUDGMENT :

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Digitally signed by RAJESHRI RAJESHRI PRAKASH PRAKASH AHER AHER Date: 2022.01.20 12:20:44 +0530

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The appellant has preferred this appeal under Section 374 of Code of Criminal Procedure, challenging the judgment and order dated 25^th August, 1998, passed by learned Additional Sessions Judge, Pune, in Sessions Case No.67 of 1996, convicting the appellant for the ofence punishable under Section 498A of IPC and sentencing him to sufer R.I. for 3 years and to pay a fne of Rs.300/-, in default to sufer further R.I. for 1 month and for the ofence punishable under Section 306 of IPC, and, sentencing

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him to sufer R.I. for 5 years and to pay a fne of Rs.500/-. In default to sufer further R.I. for 3 months. Both the sentences were directed to run concurrently. Accused nos. 2 to 4 were acquitted for the ofences punishable under Sections 498A and 306 read with 34 of IPC.

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2 The case of the prosecution is as follows:

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The marriage of the deceased Anjana was performed with the appellant (accused no.1) in 1995. it was agreed during the marriage that half tola of gold would be given to accused no.1. Accused no.1 was a divorcee from the frst wife. After marriage Anjana came to reside with accused no.1 at Phulenagar, Yeravada. Accused started residing at her matrimonial home. She was residing with all the accused. Initially she was treated properly. Thereafter, her husband started demanding table fan and half tola gold. Anjana had complained about it to her brother. Accused no.1 had demanded articles, which were not given to him. The fnancial position of the victim’s family was not sound. Anjana had complained about ill treatment to her family. Accused then demanded Rs.10,000/-, for purchasing two wheeler. Letter was received from Anjana, wherein she had asked her family to bring some wheat and rice. The father of victim went to her house

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rpa 3 / 18 50 apeal 773 1998.doc

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with articles. At that time Anjani had complained to him about the behaviour of accused. She had informed that accused no.1 was assaulting and harassing her at the instigation of co-accused. On 20^th January, 1996, the brother and father of Anjana came to know that the victim had burnt herself and succumbed to injuries. They went to Sasoon hospital. Complaint was lodged on the same day. FIR was registered vide C.R.No.16 of 1996, for the ofences punishable under Sections 498A and 306 read with 34 of IPC. Spot panchanama was recorded. It was revealed that Anjana had closed the door of washroom and set herself on fre. When it was noticed that smoke was coming from the washroom, the door was opened. By that time Anjana was completely burnt and she had expired immediately. Her dead body was taken to Sasoon hospital. Inquest panchanama was recorded. Postmortem was conducted. During the investigation, the letter was produced by Anjana’s brother. It was written by Anjana to her father. Statements of witnesses were recorded. Accused were arrested. On completing investigation, charge–sheet was fled.

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3 Charge was framed by order dated 15^th January, 1998, for ofences under Section 498A read with 34 of IPC and Section 306 read with 34 of IPC.

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4 The prosecution examined four witnesses. P.W.1 Shri. N.D. Dabhade is the complainant/brother of deceased, P.W.2 V.L. Dhabade is the mediator for marriage, P.W.3 Anuradha D. Chavan is the frst wife of the accused No.1, P.W.4 B.P. Hinghe is the police Sub Inspector. He is the investigating oficer.

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5 The statement of the accused were recorded under Section 313 of Cr.P.C. The defence of the accused is of total denial.

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6 Learned advocate for the appellant submitted that there is no evidence to convict the appellant for the ofences under Section 498A and 306 of IPC. The co-accused who were also attributed the charge of harassment resulting in cruelty and abetment to commit suicide were acquitted and on the same set of evidence the appellant has been convicted. Findings of the trial Court are based on suspicion. There was no previous complaint. There was no mention of harassment and ill treatment in the compromise pursis, fled by P.W.3. The deposition of P.W.3 is afterthought. She has received permanent alimony from the appellant. The complaint fled by P.W.3 against the appellant had ended in acquittal. P.W.1 is the brother of the deceased Anjana.

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He is interested witness. It is dificult to believe that P.W.1 had incurred expenses and parted half tola gold considering his earnings. There was no documentary evidence to show that he had incurred expenses of Rs.30,000/-. No receipt was produced to prove purchase of gold. Letter dated 23^rd December, 1995 (Exhibit – 20) produced by the prosecution is contrary to evidence of P.W.1. The said letter mentions that victim is fne and her father should not worry about her. P.W.2 is not independent witness. He is relative of the victim.

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7 In support of his submission, learned advocate Mr.Phanse has relied upon following decisions:

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(i) Ramesh Kumar Vs. State of Chattisgarh¹ ; (ii) Amalendu Pal @ Jhantu Vs. State of West Bengal² ;

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(iii) Sanju @ Sanjay Singh Vs. State of M.P.³ ;

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(iv) Girdhar Shankar Tavde Vs. State of Maharashtra⁴ ;

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(v) Gurcharan Singh Vs. State of Punjab⁵

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8 Learned APP submitted that there is evidence to prove the charges against the appellant. The trial Court has

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1 2001 AIR OXC 3837;

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2 (2010) 1 SCC 707;

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3 (2002) 5 SCC 371;

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4 (2002) 5 SCC 177;

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5 (2020) 10 SCC 200

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convicted the appellant on the basis of evidence. She was assaulted, threatened and continuously harassed. There was demand of articles. There was demand of money, vehicle and gold. On account of harassment the victim was compelled to commit suicide. There was harassment, instigation, abetment to commit suicide. There was no other reason for the victim to commit suicide. The victim had informed about the harassment to her brother and other family members. The fnancial condition of the parents of the victim was not sound. They could not fulfll the demand of the accused. The victim was under pressure. She had no other alternative but to commit suicide. The appellant is involved in subjecting his frst wife to ill treatment. She has been examined as P.W.3. She has deposed before the Court about the nature of harassment caused to her. The appellant is habitual ofender. The beneft of acquittal granted to the co-accused cannot be given to the appellant. Specifc role has been attributed to him. Hence, the appeal may be dismissed and the order of conviction be confrmed.

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9 This Appeal was admitted on 9^th November, 1998. It was pending for fnal hearing since then. When the matter was listed for fnal hearing, the appellant was not represented by the

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advocate on record. Hence, vide order dated 12^th August, 2021, learned advocate Mr.S.R. Phanse was appointed to represent the appellant.

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10 Heard both the sides. Perused the evidence on

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record.

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11 The complaint was lodged by P.W.1 Narayan Dhabade. He is the brother of deceased Anjana. According to him Anjana was his younger sister. Her marriage was performed with accused no.1 (appellant) in 1995. Vilas Dabhade (P.W.2) and others were mediator for the marriage. The complainant and his family came to know that previous marriage of the appellant was dissolved. It was agreed that the family of Anjana would give half tola gold at the time of marriage, and, bear the expenses of marriage. Accordingly they gave half tola gold and incurred expenses of marriage in the sum of Rs.40,000/-. After the marriage, the deceased was residing with the accused. Accused no.1 is her husband. The appellant had complained that the victim is not knowing household work. Victim had told P.W.1 that the accused no.1 had demanded table fan and half tola gold. Accused no.1 visited the house of P.W.1 and insisted of half tola

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gold and table fan. Subsequently, Anjana had complained that accused no.1 is assaulting her and for not fulflling the demand. Accused no.1 demanded Rs.10,000/-, for purchasing two wheeler. Anjana had written letter through someone. The letter was sent to her father. It was marked as Exhibit–20. Anjana had requested to send some wheat and rice. Father of victim took wheat and rice to her house. Anjana was burnt. He visited Sasoon hospital. Anjana had succumbed to injuries.

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12 In the cross–examination P.W.1 has stated that he has not produced any documentary evidence showing that he has incurred expenses of Rs.30,000/-, for the marriage. He did not fle any complaint with police that accused no.1 had assaulted Anjana. He did not issue any notice to accused no.1 about his demand of table fan, half tola gold, and, cash of Rs.10,000/- for purchasing vehicle. He did not produce the receipt of purchase of gold. He admitted that in Exhibit–20, Anjana had written that she was residing happily and complainant and others should not worry about her. Their fnancial condition is poor.

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13 P.W.2 Vilas Dabhade acted as a mediator for marriage. He deposed that at the time of settlement of marriage, it was

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rpa 9 / 18 50 apeal 773 1998.doc

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agreed that half tola gold be given to accused no.1. Marriage was performed. Half tola gold was given. He was informed by the brother and father of the victim that accused no.1 had demanded half tola gold and table fan and victim is being ill treated. He alongwith Pushpa Dere went to the house of the accused and tried to convince them not to demand or ill treat the victim. There was no change in the behaviour of the accused. Accused no.1 demanded Rs.10,000/-, for purchasing vehicle. In the cross examination, he stated that he came to know about the ill treatment and demand from parents and brother of victim.

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14 P.W.3 Anuradha Chavan is the frst wife of accused no.1. She has staed that her frst marriage was performed with appellant on 27^th May, 1989. She has performed second marriage with another person on 10^th October, 1995. As agreed, accused no.1 was given half tola gold, wrist watch and clothes during marriage and the expenses were borne by her father. She was ill treated. She lodged the complaint against the accused. She obtained divorce from accused no.1. In the cross–examination, she stated that in the compromise pursis fled in the Family Court, it is not mentioned that thre was ill treatment and harassment to the victim at the hands of accused. After divorce,

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she obtained permanent alimony of Rs.6,500/-, from accused no.1. In the criminal case fled by her against accused under Section 498–A of IPC, they were acquitted.

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15 P.W. 4 Bhagwan Hinge was attached to Yerawada police station. On receiving information, he went to Sasoon hospital. Parents of the deceased were present. He recorded complaint of brother of deceased. He registered FIR. Letter produced by the father of victim was seized. Spot panchanama was recorded. Accused were arrested. On completing investigation, charge – sheet was fled. In the cross – examination, he stated that he has not recorded the statements of witnesses residing at Phulenagar area.

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16 On scrutiny of the evidence, I fnd that the evidence of witnesses is not suficient to convict the appellant for the ofences punishable under Sections 498–A and 306 of IPC. The charge of the prosecution is that the accused nos.1 to 4 had subjected the deceased Anjana either individually or infurtherance of common intention to cause cruelty and harassment. The accused subjected her to cruelty and willful conduct of such nature to compel her to commit suicide. The trial

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Court has observed that the allegations made against accused nos.2 to 4 are vague and of general nature. There is no concrete evidence against them. They are entitled for beneft of doubt. It was held that the prosecution has proved its case against accused no.1.

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17 The frst information report was lodged by brother of victim. According to P.W.1 after the period of about 5 to 6 months, the accused no.1 had complained that the victim is not knowing how to do the household work. Thus, the complaint was on account of household work and not for fulflling any demand. It is alleged that thereafter the victim had told P.W.1 that the accused is demanding table fan and half tola gold. It is alleged that during the marriage as agreed between both the parties, half tola gold was given to the accused. There is no evidence to substantiate the fact that half tola gold was purchased by P.W.1 or his father. Apparently, the fnancial condition of the complainant and his father is weak. There is no cogent evidence to establish that expenses of Rs.30,000/-, were incurred by P.W.1 or his father. The alleged incident had occurred on 23^rd January, 1996. There was no previous complaint. The prosecution has relied upon a letter (Exhibit–20) written by the victim to her father. The letter was

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rpa 12 / 18 50 apeal 773 1998.doc

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written during the same period when the alleged harassment was caused to the victim. However, the said document does not refer to any ill treatment by the accused to the victim. The letter mentions that rice and wheat be provided to the victim and that she is fne.

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18 The evidence of P.W.2 is in the nature of hearsay. He acted as a mediator in the marriage. He has admitted that he came to know about the ill treatment and demand from the parents and brother of the victim. P.W.3 is the frst wife of the appellant. She was examined to prove that she was similarly harassed by accused no.1. In the examination–in–chief, she has referred to alleged harassment caused to her by accused no.1. She has also stated that complaint was lodged by her against all the accused. She obtained divorce from accused no.1. The complaint was not produced. The decree of divorce was not produced to indicate on what ground the marriage was dissolved. She had suppressed the fact in her examination–in–chief that the compromise pursis were fled in the family Court between her and the appellant. In the cross–examination, she admitted that compromise pursis was fled in the Family Court. In the said compromise pursis, it was not mentioned that there was ill

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treatment and harassment to her at the instance of the accused. She also admitted that she had received permanent alimony of Rs.6,500/-, from accused no.1. The criminal case lodged by her against the accused under Section 498–A of IPC had resulted in acquittal. Her version thereof appears to be afterthought and motivated.

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19 P.W.4 conducted investigation. He admitted that he did not record the statements of the witnesses residing in Phulenagar area. The prosecution has not examined any other witness. P.W.1 is the brother of complainant, P.W.2 is the mediator, he has no personal knowledge about the harassment, P.W.3 is not concerned with the nature of harassment meted out to the victim by the accused. P.W.4 is the investigating oficer. There are no other independent witness. The prosecution has therefore failed to establish the case beyond reasonable doubt that the victim was harassed by the appellant causing cruelty and abetting her suicide. Exhibit–20 exonerate the accused. The co-accused were acquitted. Surmises, conjunctures and suspicion cannot take place of evidence. The charge against accused was that all of them acted in furthereance of common intention while comitting ofences under Sections 498–A and 306 of IPC. Co–accused were acquitted.

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20 In the case of Ramesh Kumar Vs. State of

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Chattisgraph (Supra) , it was observed that there must be reasonable certainty of incite to attract applicability of Section 113–A. It must be shown that (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the husband or his relatives who are charged had subjected her to cruelty. On existence of such circumstances and availability of the above-said circumstances, the Court may presume that such suicide had been abetted by her husband or by relatives of her husband. The presumption is not mandatory. It is permissive as the employment of expression "may presume" suggests. The existence and availability of the above-said three circumstances shall not, like a formula, enable the presumption being drawn. Before the presumption may be drawn, the Court shall have regard to all the other circumstances of the case. A consideration of all the other circumstances of the case may strengthen the presumption. The expression “The other circumstances of the case”, used in Section 113–A suggests the need to reach a cause–and–efect relationship between the cruelty and suicide for the purpose of raising a presumption. The presumption is not an irrebuttable one. Inspite of presumption, having been raised, the evidence adduced in

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defence or the facts and circumstances otherwise available on record may destroy the presumption. In the case of Amalendu Pal @ Jhantu Vs. State of West Bengal (Supra) it was held that before holding an accused guilty of an ofence under Section 306 of IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to fnd out whether the cruelty and the harassment meted out to the victim had left the victim with no other alternative but to commit suicide. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 307 IPC is not sustainable. There must be a case of suicide and in the commission of the said ofence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said ofence must be proved and established by the prosecution before he could be convicted under Section 306 of IPC. In the

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case of Sanju @ Sanjay Singh Sengar Vs. State of M.P. (Supra) , it was held that instigation denotes incitement or urging a person to do some drastic or inadvisable action or to stimulate or incite. Presence of mensrea is the necessary concomitant for instigation. In the case of Girdhar Shankar Tawade Vs. State of Maharashtra (Supra) , that the basic purport of Section 498– A is to avoid ‘cruelty’, which is defned by attributing a specifc statutory meaning attached thereto. Two specifc instances have been taken note of in order to ascribe a meaning to the word ‘cruelty’, as is expressed by legislature; whereas Explanation (a) involves three specifc 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 ft to include only coercive harassment which obviously as the legislative intent expresses is equally heinous to match the physical injury; whereas one is patient, the other one is latent but equally serious in terms of the provisions of the statue since the same would also embrace the attributes of cruelty in terms of Section 498–A. Section 498–A is attributed only in the event of proof of cruelty by the husband or the relatives of the husband of the woman. In the

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case of Gurucharan Singh Vs. State of Punjab (Supra) , it was held that to give a fnding of abetment of suicide under Section 306 of IPC, it must be established that the accused instigated a person either by act of omission or commission or by persistent cruelty or harassment.

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21 Applying these settled principles of law to the facts of this case, it cannot be said that the prosecution has been able to establish that the accused no.1 has committed the ofence under Section 498–A and 306 of IPC. Hence, Appeal deserves to be allowed and thus, conviction imposed upon the appellant has to be set aside.

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Assistance of advocate appointed to represent appellant is appreciated. Professional fees of appointed advocate be paid to him in accordance with rule.

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23 Hence, I pass the following order:

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:: O R D E R ::

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(i) Criminal Appeal No.773 of 1998 is allowed and disposed of;

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(ii) The impugned judgment and order dated 25^th August, 1998, passed by Additional Sessions Judge, Pune, in Sessions Case No.67 of 1996, convicting the appellant for ofence punishable under Section 498A of IPC and Section 306 of IPC, is set aside, and, the appellant is acquitted of all charges.

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( PRAKASH D. NAIK, J.)

Satish Digambar Dehere v. the State of Maharashtra

Case brief

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Satish Digambar Dehere v. the State of Maharashtra

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