2011 Supreme(Bom) 622
2011 ALL MR (Cri) 2462
In the High Court of Bombay at Aurangabad
SHRIHARI P. DAVARE
Kailash s/o Baburao Pandit & Others
Versus
The State of Maharashtra & Another
CRIMINAL APPEAL NO. 50 OF 2011
Decided on: 10-06-2011
For the Appellants:S.T. Ghute, Advocate.
For the Respondents:R1, B.V. Wagh, A.P.P, R2 , A.A. Jagatkar, Advocate.
Headnote:Indian Penal Code, 1860 - Sections 107 and 109-Abetment of offence-Offence of abetment, a separate and distinct offence provided in Act as an offence-Abetment may be by instigation, conspiracy or intentional aid-"Abetted" in Section 109 of Code means specific offence abetted-Offence for abetment normally linked with proved offence.-Section 107 of the Indian Penal Code, which defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" liberally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. ’Abetted’ in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough..
Indian Penal Code, 1860 - Sections 107 and 306-Abetment of suicide-Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing-Move active role required before a person can be said to be abetting commission of offence under Section 306 of Indian Penal Code.-Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can be said to be abetting the commission of offence under Section 306 of the Indian Penal Code.
1. Challenge in this appeal is to the judgment and order, dated 19.1.2011, rendered by the learned Ad hoc Additional Sessions Judge, Gangakhed, thereby convicting appellant nos. 1 to 3 herein (original accused nos. 1 to 3) for the offences punishable under Sections 306, 498A r/w 34 of the Indian Penal Code and sentencing them for the offence punishable under Section 306 of the Indian Penal Code to suffer rigorous imprisonment for six years and to pay fine of Rs.1,500/- by each, in default to suffer rigorous imprisonment for 60 days by each of them; and also sentencing them for the offence punishable under Section 498A r/w Section 34 of the Indian Penal Code to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- by each, in default to suffer rigorous imprisonment for 20 days by each of them, and also directing that out of the total fine amount of Rs.6,000/-, an amount of Rs.5,000/be paid to the complainant i.e. respondent no.2 herein i.e. father of the victim as compensation under Section 357 (1) of the Code of Criminal Procedure and further directing that all the afore said sentences to run concurrently.
2. The facts and the events leading to the present appeal are briefly stated herein below:
Victim Bhagyashri married with appellant no.1 Kailash in December, 2008 and appellant no.2 Baburao is her father-in-law and appellant no.3 Sanjeevani is her mother-in-law. After the marriage, deceased Bhagyashri started residing with appellant nos. 1 to 3 at her matrimonial home. Initially, appellants herein treated victim Bhagyashri well for the period of one month. However, it is alleged that thereafter they started making demand of Rs.2,00,000/- from her for purchase of plot. According to the complainant, appellant no.1 used to demand money even on phone, as well as they used to insist the deceased to bring money from her parental house. However, respondent no.2 i.e. original complainant could not comply with the said demand due to his poor financial condition, and therefore, the accused even left deceased Bhagyashri to his house. At that time, it is alleged that victim Bhagyashri informed that the appellants used to drive her out of house and they used to insult her on account of her black complexion. Victim Bhagyashri remained pregnant, but accused nos. 2 and 3 were saying that they were not able to maintain three persons including her child, and hence, they insisted upon her to abort the child. According to the complainant, he tried to persuade the appellants, but they subjected victim Bhagyashri to mental and physical torture. It is alleged that appellant no.1 used to consume liquor and assault victim Bhagyashri. It is also alleged that even the appellants used to starve victim Bhagyashri. It is further alleged that the harassment, ill-treatment and mental and physical torture, to which victim Bhagyashri was subjected at the hands of the appellants, ultimately culminated into committal of suicide by deceased Bhagyashri by hanging herself by means of nylon rope on 4.7.2009.
3. Accordingly, a report about suicidal death of married woman, namely Bhagyashri was lodged on 4.7.2009 by PW6 A.P.I. Deepak Shinde at Sonpeth police station and in pursuance of the registration of A.D. No. 14 of 2009 (Exh.27), under Section 174 of the Code of Criminal Procedure, inquiry was initiated in the matter. Accordingly PW6 A.P.I. Deepak Shinde along with the staff went to the spot of the incident and prepared the spot panchanama (Exh.18) and seized one white colour nylon rope from the spot. PW5 Head Constable Kejgir prepared the inquest panchanama (Exh.16) of the dead body of the victim, which was sent for postmortem examination and on the same day, PW7 Dr. Siddheshwar Halge performed the postmortem on the dead body of victim Bhagyashri and issued the provisional death certificate (Exh.31) mentioning the provisional cause of death, as cardio respiratory failure due to asphyxia due to hanging and viscera was preserved for che