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2018 Supreme(Bom) 1429
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
MANISH PITALE, J.
Subhash s/o Motiram Wadekar - Appellant
Versus
The State of Maharashtra - Respondents
Criminal Appeal No.274 of 2005
Decided On : 01-08-2018
For the Petitioners:Mr. N.R. Tekade, Advocate.
For the Respondents: Mrs. Shamsi Haider, A.P.P.
Headnote:
Indian Penal Code,1860 - Sections 498-A and 306 - Criminal Procedure Code,1973 - Section 174 - FIR - commit suicide - Case appellant was married to deceased and they had two sons Nikhil As per prosecution case since appellant desired to purchase a house he was harassing deceased to bring money from her parents and that he had sent her to house of her parents money returned to matrimonial home morning when she was washing clothes appellant came home after attending flag hoisting ceremony in his office- He asked her to give pickle to him deceased told him to take it himself upon which he got annoyed and started beating her and he also twisted her hand- Upon this said stated that she would end her life by consuming poison and appellant allegedly told her to do so- Consequently said did consume poison- She was taken to hospital by her son Nikhil - Initially an accidental case Code of Criminal Procedure was registered said died –Held, Case is that incident occurred morning at about while oral report leading to registration of FIR was submitted before Police - Therefore there was delay of more than registration of FIR present case- Although complainant has sought to give an explanation for delay by stating that his mother was ill from but there is no explanation from side of prosecution as to why no other person from family of deceased came forward to raise a grievance before Police- Apart from this it is evident from record that a report had been recorded immediately of incident and that investigating officer had started recording statements of witnesses- If case of prosecution was indeed genuine grievance raised by complainant would have come to knowledge of Police immediately and there was no reason why registration of FIR would have waited for more than four days- This aspect of present case also creates doubt about allegations made against appellant- In this backdrop only because there was nothing to show that appellant had not immediately taken deceased to hospital upon her consuming poison he cannot be convicted for having committed case is that incident occurred in morning at about while oral report leading to registration of FIR was submitted before Police - Therefore there was delay of more than registration of FIR present case- Although complainant has sought to give an explanation for delay by stating that his mother was ill from but there is no explanation from side prosecution as to why no other person from family of deceased came forward to raise a grievance before Police- Apart from this it is evident from record that a report Section had been recorded immediately on of incident and that investigating officer had started recording statements of witnesses- If case of prosecution was indeed genuine grievance raised by complainant would have come to knowledge of Police immediately and there was no reason why registration of FIR would have waited for more than four days- This aspect of present case also creates doubt about allegations made against appellant- In this backdrop only because there was nothing to show that appellant had not immediately taken deceased to hospital upon her consuming poison he cannot be convicted for having committed submission made on behalf of appellant that during a quarrel in heat of moment between two persons if one of them takes extreme step of consuming poison other person cannot be held guilty Section IPC need not be gone into because present case there is lack of evidence to show that any such quarrel or incident in fact had taken place - Therefore said position of law could not be relied upon in of present case to examine whether conduct of appellant was such that on date of incident he had indeed driven deceased to commit suicide - Appeal allowed
1. The appellant has challenged judgment and order dated 21.04.2005 passed by the Sessions Court at Akola (trial Court) in Sessions Trial No. 137 of 2004, whereby he was convicted under Section 306 of the Indian Penal Code (IPC) and he stood sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.2000/-. The appellant was also charged with having committed offence punishable under Section 498-A of the IPC but he stood acquitted of the same by the trial Court.
2. According to the prosecution case, the appellant was married to the deceased Sharda on 30.05.1991 and they had two sons Nikhil and Amol. As per the prosecution case, since the appellant desired to purchase a house, he was harassing the deceased to bring money from her parents and that he had sent her to the house of her parents on 12.08.2003 to bring money. The deceased Sharda returned to the matrimonial home on 14.08.2003. On 15.08.2003, in the morning when she was washing clothes, the appellant came home after attending flag hoisting ceremony in his office. He asked her to give pickle to him. The deceased Sharda told him to take it himself, upon which he got annoyed and started beating her and he also twisted her hand. Upon this, the said Sharda stated that she would end her life by consuming poison and the appellant allegedly told her to do so. Consequently the said Sharda did consume poison. She was taken to the hospital by her son Nikhil PW1 and one Mr. Gedam. Initially an accidental case under Section 174 of the Code of Criminal Procedure (Cr.P.C.) was registered. The said Sharda died on 16.08.2003 at about 11 a.m.
3. After about 3 days, i.e. on 19.08.2003, an oral report was submitted by brother of the deceased PW5 Laxman Satpute in the Police Station, claiming that the appellant had harassed the deceased in connection with demand of money and that the said Sharda had been driven to commit suicide. On this basis, first information report (FIR) was registered against the appellant in Police Station Civil Lines, Akola, for offences punishable under Sections 498-A and 306 of the IPC. Investigating Officers PW6 and PW7 conducted the investigation and submitted charge sheet, on the basis of which the appellant was charged with having committed the said offences.
4. In support of its case, the prosecution examined seven witnesses, PW1 Nikhil was the son of the appellant and the deceased, who had seen the incident on 15.08.2003, PW2 Chandrakalabai was a neighbour of the mother of the deceased, PW3 Kasabai was the mother of the deceased, PW4 Niranjan was a close relative of the deceased, PW5 Laxman (complainant) was the brother of the deceased, PW6 Kondiba and PW7 Kashiram were the two investigating officers, who conducted investigation in the present case.
5. On the basis of the oral and documentary evidence on record, the trial Court found that the case regarding demand of money against the appellant was not made out and it was found that the defence witness examined by the appellant showed that loan for construction of house had been taken by him and that the house was already constructed. On this basis, the trial Court found that the prosecution case under Section 498-A of the IPC was not made out.
6. But, the trial Court found that the evidence of PW1 Nikhil read with evidence of the other prosecution witnesses demonstrated that the incident in question did occur on 15.08.2003 in the morning, leading to the said Sharda committing suicide by consuming poison. The trial Court placed reliance upon the evidence of PW1 and it found that the conduct of the appellant in failing to prevent Sharda from taking poison and/or failing to take her to the hospital immediately after the incident demonstrated that he was liable for having committed offence under Section 306 of the IPC. On this basis, the trial Court convicted and sentenced the appellant in the aforesaid manner.
7. Mr. N.R. Tekade, learned counsel appearing on behalf of the appellant, sub
