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Nandkishor Shamrao Bhandare Vs. State of Maharashtra

Judgement

 

Court:Bombay High Court

Bench: JUSTICE Sadhana S. Jadhav

Nandkishor Shamrao Bhandare Vs. State Of Maharashtra On 06 May 2013

Law Point:
Indian Penal Code, 1860 — Sections 498A, 306 — Cruelty — Abetment to suicide — Allegations against husband that deceased committed suicide by jumping out of running Jeep because he quarrelled before incident and threatened her of dire consequences — Documentary evidence established that she had died in accident — Deceased continued to serve as a teacher even after marriage — She was meeting her husband only on week-ends — She was residing with her parents seven months prior to the date of incident — It cannot be said that she had no other alternative but to commit suicide — Moreover, allegations against accused Nos. 2 to 5 and the allegations against appellant are virtually same — Accused Nos. 2 and 5 acquitted of charges under Section 498A and same parameters would be available to the present appellant — Conviction set aside..

 

 

JUDGEMENT

 

1. The appellant herein stands convicted for the offence punishable under Section 498A of the Indian Penal Code and is sentenced to suffer R.I. for two years and to pay fine of Rs. 3,000 in default six months further R.I., he is also convicted for the offence punishable under Section 306 of IPC and is sentenced to suffer R.I. for five years and to pay fine of Rs. 10,000 in default to suffer further R.I. for one year in Sessions Case No. 36 of 2004 by the 1st Ad hoc Addl. Sessions Judge, Islampur, vide judgment and order dated 12th January, 2006. Hence, this appeal.

2. Such of the facts, which are necessary for the decision of this appeal, are as follows:

(a) One Vanita, daughter of Ramchandra Habale, was serving as a teacher at Umrani, Taluka Jath since 2000. She was married to the present appellant on 16.5.2002. The appellant was also serving as a teacher in Wamawati. The couple used to meet twice a week. It is the case of the prosecution that for the initial period of six months after marriage, Vanita was treated properly by her husband and her in-laws. However, thereafter, they were coercing her to fetch Rs. 50,000 for purchasing a motor-cycle. Similarly, they suspected her chastity and hence they abused her and threatened her of dire consequences. It is further alleged by the prosecution that sometime in October 2003, the appellant had dropped his wife Vanita at her parents’ house and had threatened her that she shall not return to her matrimonial abode unless she fetched Rs. 50,000. Since October 2003, the couple had not met each other.

(b) The appellant as well as Vanita were to appear for the examinations held by the Maharashtra Public Service Commission (hereinafter referred to as “MPSC”). The preliminary MPSC Examinations were to be held on 30th May, 2004. Vanita and her sister Varsha were to appear for the said examination. They left their house at about 7 a.m. as the venue of examination of Vanita was in Kastrubai Walchand College, Sangli and Varsha was to appear at G.R. Purohit College, Sangli. It is alleged that on 30th may, 2004 at about 5 p.m., Vanita had made a phone call to her brother Vijay son of Ramchandra Habale (PW-1) (hereinafter referred to as the complainant) and informed him that after the examination, the appellant came to the examination centre, he abused and had beaten her, he then took her to Amrai Garden and picked up a quarrel with her by threatening her that he would kill her and her brother. She was mentally upset and she informed her brother that she would not return to the house. She had also allegedly informed her brother that she would commit suicide by drowning in the river. Her brother had asked her to reach Tilak Chowk, Sangli and that her brother would meet her there and take her home. She had allegedly asked her brother not to come to Tilak Chowk to fetch her and she can manage herself. She had also allegedly informed her brother that she had taken a seat in Wadap Jeep. The complainant had spoken to the driver of the jeep, namely, Raju Chavan and had asked him to take care of his sister Vanita. At about 6 p.m., one motor-cyclist informed PW-8 that Vanita was injured and was taken to the Hospital of Dr. Kabade. Within a short time, another motor-cyclist, namely, Sanjay Kamble had informed PW-8 that Vanita had jumped from the running jeep and was admitted in the Hospital of Dr. Kabade. PW-8 therefore rushed to the hospital and saw that Vanita was unconscious on account of head injuries. Dr. Kabade had advised them to take her to Sangli or Kolhapur. She was taken to the hospital of Dr. Prabhu at Kolhapur and thereafter admitted her to Adhar Hospital. She died at about 00.30 hrs. on 31.5.2004. On 31.5.2004, A.D. No. 26 of 2004 was registered at Juna Rajwada Police Station. The Asstt. PST of Juna Rajwada Police Station filed the report to P.I. of Ashta Police Station, District Sangli that Vanita had met with an accident on 30.5.2004 and when she was taking treatment at Adhar Nursing Home, she had succumbed to the head injuries. It was also mentioned in the report that the relatives of Vanita had informed that she had died in an accident. The said communication is at Exhibit 40. One Pratap Bhandare had informed the in-laws of Vanita about her death on 1.6.2004, PW-8 lodged FIR at Ashta Police Station alleging therein that Vanita had committed suicide by jumping from the running jeep and that the appellant and his family members (original accused Nos. 2 to 5) were responsible for her death.

(c) Dr. Amol Kodalikar of Adhar Nursing Home had informed the Juna Rajwada Police Station about the accidental death of Vanita. The said communication is at Exh. 43. Similarly, Dr. Amol Kodalikar of Adhar Nursing Home had also informed the PSO of Juna Rajwada Police Station that Vanita Bhandare was taken to the hospital as she had sustained injuries in an accident. It was further informed that at about 11 p.m. the doctor had made an endorsement that the patient is not in a position to give statement. The post-mortem notes are at Exh. 38. Column No. 5 of the post-mortem read as follows—

“As per police inquest, the said female was injured due to fall from vehicle and was advised to CPRU for further treatment and expired while under treatment.”

Inquest Panchnama was held on the dead body of Vanita. The body was identified by her brother Vijay i.e. PW-1. The inquest Panchnama is at Exh. 41. The Panchas to the inquest Panchnama are Sanjay Dattatray Kamble and Sulbha Nandkumar Autari. Column 17 of the post-mortem notes reveal Sutured CLW on scalp on occipital region. The cause of death was Cranio-cerebral Injury.

3. On 1.6.2004, PW-8, Vijay Habale lodged a report at the Police Station on the basis of which Crime No. 26/2004 was registered against the appellant and four others for the offences punishable under Sections 498A and 306 of IPC. The investigation was set in motion. The prosecution examined nine witnesses to bring home the guilt of the accused. The accused has examined Advocate Sharadchandra Tatyasaheb Vagyani as the defence witness.

4. It is pertinent to note that the appellant was also appearing for the preliminary MPSC Examination on the same day and his centre was ….

5. PW-1 Kiran Tambvekar is the person who was travelling by the same jeep with Vanita. According to him, Vanita was siting just behind the driver’s seat. He was acquainted to her. Sanjay Kamble was also travelling in the same jeep. Vanita and Sanjay had a talk about school and MPSC Examination. He has further deposed that she appeared to be restless and there were tears in her eyes. When the jeep was passing through Malgave Nursery, she jumped from the running jeep. Someone had attempted to administer water to her. However, she had become unconscious. She was taken to Kabade Hospital by the same jeep. PW-1 happens to be the friend of PW-8 Viay Habale. According to PW-1, he had been to Sangli to purchase spare-parts. He has further deposed that there were 7-8 persons who were travelling in the jeep. PW-1 had not paid the fare of the jeep. It is elicited in the cross-examination that Vanita had not come to Tilak Chowk by the said jeep. He has admitted that there was no door to the jeep. It is further elicited in the cross-examination that Vanita Bhandarre and Sanjay Kamble were talking to each other before jeep left Tilak Chowk and thereafter they did not talk. The incident had occurred 30 minutes after the jeep had left Tilak Chowk. He has further deposed that it was from her activities that he guessed that Vanita had jumped from the jeep. He has admitted that he had not informed about the incident telephonically to the relatives of Vanita. He went by jeep up to Dudhgaon Naka at Ashta. He had not seen anybody from her house at Ashta Naka. He has further admitted that he had learnt about the death of Vanita on the next day of incident. The police had not made any inquiry from him. He had been to the Police Station voluntarily. His statement was recorded on 1.6.2004 i.e. after registration of the crime.

6. PW-2 Raju Chavan is the driver of the jeep bearing No. MH-10-K-313. The jeep was owned by Mahesh Dattatraya Hake. He has deposed before the Court that he had parked the jeep in Tilak Chowk at Sangli on 30.5.2004 near the Iron-win bridge. One woman was sitting as passenger in the middle seat behind his back. She was speaking on her cell phone. She had given cell phone to the driver Vijay Habale, brother of the said woman was on the other side of the phone. The caller had informed PW-2 to bring the woman safely to Ashta and she should not be permitted to alight from the jeep before reaching Ashta. At about 5.30 p.m. after he could get sufficient passengers, PW-2 started the jeep. When the jeep was passing through Malgave Nursery, the woman suddenly jumped from the jeep at driver’s side while the jeep was in motion. He then took the injured woman to the hospital of Dr. Kabade. The relatives of the injured reached the hospital immediately. She had sustained head injuries and was transferred to another hospital. He had shown the place of incident to the police on 31.5.2004. It is elicited in the cross-examination that the jeep bearing No. MH-10-K-313 was not seized by the police. The jeep did not have doors at the sides. There were no curtains to both the sides. It is further elicited that the accident caused at the distance of 1/2 km. from Ashta towards Sangli. The witness has admitted that the injured woman was sitting on a seat at the back side of driver’s seat. There was no door on her right side. He has a permit of 6 + 1 passengers. However, ten passengers can board the jeep. It is pertinent to note that in the cross-examination, PW-2 has categorically admitted that the police had recorded his statement on 31.5.2004. In the said statement, he had not informed the police that the injured had received a phone call from Vijay Habale i.e. the brother of the woman and that the said caller had told PW-2 to bring her safely to Ashta and that she should not be allowed to alight before Ashta. This is a material omission which goes to the root of the matter and hence the witness has been falsified in respect of his conversation with PW-8 just before the accident. The possibility of accident cannot be ruled out as PW-2 has categorically admitted that on the right side the jeep neither had doors nor curtains and she was sitting just behind the driver.

7. PW-3 Shrish @ Shrirang Pawar is the friend of PW-8 since childhood. According to him, he had appeared for preliminary MPSC examination and the venue was in Gujarati High School, Sangli. According to him, after the examination, he was chitchatting with his friends for some time. At about 2.30 p.m., he went to Amrai road for purchasing clothes. He then came to Amrai Garden and at that time, he saw the appellant and his wife Vanita quarrelling there. He had seen the appellant abusing her. He did not intervene as it was a quarrel between husband and wife. He then went to Ashta at about 4-5 p.m. The prosecution has examined PW-3 in order to establish that the appellant had met the deceased soon before her death and that he had abetted suicide by his conduct. It is elicited in the cross-examination that PW-3 had not placed on record any document to show that he had appeared for the MPSC Examination on 30.5.2004.

8. PW-4 Baburao Habale is the uncle of deceased Vanita. He has deposed before the Court about the ill-treatment, meted out to Vanita for fetching Rs. 50,000 and that Vanita had informed him telephonically about the same. He has deposed before the Court that Vanita was staying with her uncle in August 2003 and on 31.8.2003 that PW-4 had been to the house of the accused to fetch her belongings. He was not permitted to enter into the house. It is elicited in the cross-examination that PW-4 was acquainted with the family of the appellant since 24 years prior to the incident. He has admitted that Vanita had continued to serve as a teacher at Umrani even after marriage and the accused/appellant was serving at Warnavati. Ashta is a centre place between Umrani and Warnavati. The couple was meeting each other on week-ends at the house of accused No. 1 at Ashta. The appellant was prosecuting his Master’s Degree in Business Administration at Kolhapur. PW-4 has also admitted that the appellant was making efforts to get Vanita transferred to Warnavati from Umrani. PW-4 has also admitted that he along with Advocate Vagyani had made efforts to reconcile the relations between the appellant and his wife and that Advocate Vagyani had tried to convince both of them. PW-4 has further admitted that the jeep driver, Vanita’s mother and brother Vijay were present in the hospital at Kolhapur. PW-4 has further admitted that at the time of inquest Panchnama, the police had enquired with them as to how Vanita had fallen from the jeep. He has also admitted that funeral was performed at Ashta i.e. at the house of the appellant.

9. PW-5 Sanjay Dattatraya Kamble was allegedly travelling in the same jeep as he had also appeared for Preliminary MPSC Examination on 30.5.2004. The venue of his examination was also at Kasturbai Walchand College, Sangli. According to him, at about 5 p.m., he came to Tilak Chowk by autorickshaw. At that time, Vanita also came there. They discussed about the examination. Within a short while, the jeep came there. Vanita occupied the seat at the back side of the driver and PW-5 had seated on the rear side. The jeep left Tilak Chowk at 5.30 p.m. He has deposed before the Court that in the jeep, she informed him that her husband had quarrel with her and he had asked her to quit the job or else he will not maintain her. She has further allegedly informed that her husband was suspecting her chastity. PW-5 had informed her that he would make efforts to convince her husband. He has also deposed that she was speaking on the cell phone while travelling in the jeep. He has further deposed that at about 6 p.m. she suddenly jumped from the jeep, she sustained head injuries and had become unconscious. PW-5 then went to the house of Ashok Malgave and contacted her brother. He also tried to contact him from the STD Booth and when he returned back to the spot, the jeep and Vanita were not at the spot. She was taken to the hospital. Her purse, cell phone and question paper were with Malgave. He gave those articles to PW-5. He met the brother and mother of Vanita near Dange college stop at Ashta. He informed them about the incident and then proceeded to the hospital of Dr. Kabade. Vanita was then taken to Kolhapur. PW-5 had accompanied her. She was taken to Dr. Prabhu and then to Adhar Hospital. PW-5 has categorically admitted in the cross-examination that he was present at the time of inquest Panchnama and police had made inquiries with him. Material omission elicited in the cross-examination is that PW-5 had not disclosed to the police that Vanita had jumped from the jeep. He has also admitted that he had not disclosed the incident to anybody till his statement was recorded by the police. PW-5 is acquainted with Vanita’s mother as she was serving in a school in front of his house. PW-8 also happens to be a good friend of PW-5. In the cross-examination, PW-5 has admitted that he had made efforts to reconcile. He has admitted in the cross-examination that while travelling in the jeep, Vanita had not disclosed her domestic affairs with him. He has admitted that the jeep was closed from back-side only and that there were no doors at both sides of the jeep. It is also elicited in the cross-examination that although Vanita had a cell phone, PW-5 had not attempted to contact her brother from her cell phone soon after the incident. He had not handed over the articles to the police. He had not disclosed to the police that Ashok Malgave gave the articles to him. He has categorically admitted in the cross-examination that he had informed Dr. Kabade that Vanita had sustained injuries in the incident.

10. PW-6 Bharti Sakekar is the sister of deceased Vanita. She has deposed before the Court that the couple was meeting twice a week at Ashta. She has deposed before the Court that several accused persons were taunting Vanita and she was ill-treated. She has further deposed that the appellant had not permitted her to appear for her M.A. Examination. According to PW-6, at about 5 p.m. Vanita had called on the land line. Vijay had received the phone call. Vanita had disclosed to Vijay that her husband had quarrelled with her and threatened her of dire consequences. PW-6 was at home when her mother, brother and others had been to Dange College S.T. Stop. He was telephonically informed that Vanita was taken to Kabade Hospital. In the cross-examination, PW-6 has stated that her sister was serving for about four years before her marriage. That she had suspected the character of her husband as he was talking with other women. She had asked him about it. She had learnt about her husband’s intimacy with one woman at Village Beda. She had suspected her husband and that was the reason for quarrel. She has admitted in the cross-examination that Vanita had not disclosed to her that her husband was suspecting her chastity.

11. PW-7 Ramrao Dhanawade is the Panch for the Panchnama of scene of offence which is at Exhibit 35. The recitals of the Panchnama would show that it was conducted on 31.5.2004 in A.D. No. 26/2004 between 3 p.m. and 3.30 p.m. The driver namely Raju Chavan had shown the scene of incident.

12. PW-8 Ramchandra Habale is the complainant. According to him, Vanita was ill-treated and coerced to fetch Rs. 50,000 for purchasing motor-cycle. He is the complainant and has proved the contents of the FIR which is at Exhibit 37. He has quoted her cell phone number as 9822217787. According to him, Vanita had disclosed to him her intention of committing suicide just before the incident and had further disclosed that the appellant had raised a quarrel with her. He has admitted that Vanita and the appellant were meeting at Ashta only on the week-ends and that seven months prior to the incident, she was residing in her maternal house. He has admitted that the cell phone was in his possession soon after the incident and during the course of investigation, he had not handed over the cell phone to the police. It is an admitted position that the Investigating Officer has not taken the call record on the said cell phone and hence the prosecution has failed to establish that Vanita had spoken to her brother soon before the incident. There are material omissions elicited in the cross-examination which go to the root of the matter. He had not disclosed to the police that the driver of the jeep had informed him that Vanita had jumped from the jeep while it was in motion. He had not informed Dr. Kabade as to how Vanita sustained injuries. Vanita was taken to Adhar Hospital at 8 – 8.15 p.m. The police office of said Juna Rajwada Police Station had come to Adhar Hospital and had enquired about the cause of injuries sustained by Vanita. PW-8 has admitted the contents of column No. 12 of Exhibit 41 which is the inquest Panchnama. In column No. 12, it is specifically mentioned that Vanita had sustained injuries in a vehicular accident. According to him, he had not complained to the police at that time as they had not enquired specifically. The explanation of PW-8 in respect of delay in lodging of FIR is that his mother was ill and that they were going through a mental shock.

13. PW-9 Krishnarao Anand Patil is the Investigating Officer. On 31.5.2004, he had received the papers of inquest Panchnama, post-mortem examination and advance death certificate from Juna Rajwada Police Station, Kolhapur. On 31.5.2004, he had conducted the spot Panchnama. According to him, he had seized the jeep from which Vanita had jumped on the road. He has deposed before the Court that when he enquired with the relatives of Vanita, they informed him that they are not in a state of mind to give statement and that they would go to the police station and give their statement. Accordingly, on 1.6.2004, Vijay Habale lodged a report on the basis of which crime No. 46/2004 was registered against the accused persons. After completion of investigation, he had filed the charge-sheet on 28.10.2004. In the cross-examination, PW-9 has admitted that there is an entry at Juna Rajwada Police Station that Vanita had sustained lead injuries in an accident. He was aware that he could trace the phone number and the four phone calls from the cell of Vanita, however, he made no efforts in that direction. It is pertinent to note that PW-9 has not recorded the statement of Dr. Kabade, Dr. Kodolikar or Dr. Kulkarni from Adhar Hospital.

14. The learned Counsel for the appellant has rightly submitted that the documentary evidence would substantially establish that Vanita had died in an accident. There is no evidence on record to indicate that Vanita had jumped from the vehicle.

15. The learned APP has submitted that the appellant had met the deceased soon before the incident, he had quarrelled with her, he had threatened her of dire consequences, she was so upset and depressed that she had no alternative but to commit suicide and therefore the conviction of the appellant for the offence punishable under Section 306 of IPC should be upheld.

16. It is an admitted position that Vanita had continued to serve as a teacher even after marriage. She was meeting her husband only on week-ends. P W-4 has deposed that the appellant was making efforts to transfer Vanita from Umrani to Warnavati. Vanita was residing with her parents seven months prior to the date of incident. In these circumstances, it cannot be said that Vanita had no other alternative but to commit suicide. PW-3 has deposed that he had seen the appellant talking to Vanita soon before the incident cannot be considered as a reliable witness for the simple reason that there is nothing on record to establish that he was also appearing for MPSC Preliminary Examination on 30.5.2004. Moreover, his statement was recorded on 1.6.2004. He was a good friend of PW-8. However, he had not disclosed to PW-8 that he had seen Vanita and her husband quarrelling at Amrai. At this stage, the learned Counsel for the appellant submits that even if it is said that the appellant had met Vanita after the examination and had quarrelled with her, the said evidence is not sufficient to establish that the appellant had abetted the commission of suicide by his wife.

17. The learned Counsel for the appellant has placed reliance on the judgment of the Apex Court in the case of M. Mohan v. State, II (2011) SLT 403=I (2011) DLT (Crl.) 748 (SC)=I (2011) CCR 544 (SC)=AIR 2011 SC 1238. The Hon’ble Apex Court has held as follows:

“Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the Legislature is clear that in order to convict a person under Section 306, IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.”

18. According to the learned Counsel for the appellant, the couple had no communication with each other since seven months prior to the incident and on that day i.e. 30.5.2004, when they confronted each other, there is every possibility that they must have inter-connected. The relations between the couple were strained but at the same time it cannot be said that the deceased would feel helpless or was left with no other alternative but to commit suicide, especially when her parents and her brothers and sisters cared for her. Hence, according to the learned Counsel, the prosecution has miserably failed to establish that the appellant had abetted the commission of suicide of his wife Vanita.

19. No doubt, the documentary evidence on record clearly establish that she had rather died in an accident. The brother of the deceased i.e. PW-8 was present at the time of inquest Panchnama. He has admitted in his substantive evidence that column No. 12 of the inquest Panchnama which reflects accidental death is true and correct. The communication from Juna Rajwada Police Station to the P.I. of Ashta Police Station indicating accidental death would speak volumes for itself. Exhibit 43 is a communication by Dr. Amol Kodalikar to the PSO of Juna Rajwad Police Station which further establishes that Vanita had sustained injuries in an accident. The Investigating Officer has not recorded the statement of Dr. Kodalikar to falsify that it was not an accidental death. For the above mentioned reasons, it can be safely held that the prosecution has failed to establish that the appellant can be held guilty of the offence punishable under Section 306 of IPC.

20. The evidence on record would reveal that 7 months prior to the incident, the couple had separated. Even prior to that, the couple was meeting each other only on week-ends and hence there was no occasion for ill-treating Vanita to such an extent to drive her to a stage that she would cause injury to her body and life. The allegations against original accused Nos. 2 to 5 and the allegations against the present appellant are virtually same. Original accused Nos. 2 to 5 have been acquitted of the charges under Section 498A and the same parameters would be available to the present appellant. The accused has examined Advocate Sharadchandra Vagyani, who had initially made attempts to reconcile the differences between the couple. He has deposed before the Court that the couple had made allegations against each other. They were not prepared to accept his advice. He had suggested that they should wait for a month and then decide about the dissolution of marriage. In the cross-examination, the defence witness has admitted that the uncle of the appellant was serving with him. The appellant had sought advice from Advocate Vagyani and at his request, the parents and family members of Vanita were summoned by him. Vanita, her uncle and brother had met him. The appellant was intending to divorce Vanita. There is no evidence on record to hold the appellant guilty of offence punishable under Section 498A of IPC.

21. In the above-mentioned premises, the judgment and order passed by the Ist Ad hoc Addl. Sessions Judge, Islampur, dated 12th January, 2006 in Sessions Case No. 36 of 2004 deserves to be quashed and set aside. The appeal is allowed. The accused appellant is acquitted of the charges levelled against him. The conviction of the accused for offence under Sections 498A and 306 of IPC is quashed and set aside. The bail-bonds of the appellant stand cancelled. Fine amount, if paid, be refunded to the appellant.

 

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