1 cri appeal 243.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 243 OF 1999 Siddarth S/o Narayan Kamble, Age : 27 Years, Occu. : Student, R/o Ashta, Tq. Kinwat, District Nanded. .. APPELLANT (Orig. Accused No. 1) Versus The State of Maharashtra, Through Police Station, Mahur, Tq. Kinwat, Dist. Nanded. .. RESPONDENT Shri Jagtap, Advocate h/f Shri V. D. Patnoorkar, Advocate for the Appellant. Shri V. G. Shelke, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 19TH JANUARY, 2011. JUDGMENT :
. This appeal is filed challenging the judgment and order of
the Joint District and Additional Sessions Judge, Nanded in
Sessions Case No. 191/1994 dated 21st May, 1999.
2. The prosecution story in brief is as under :
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The deceased Panchasheela was residing along with her
parents in village Ashta, in Kinwat taluka of Nanded district.
Nivratti (P.W.-2) complainant is the brother of deceased
Panchasheela. It is the case of the prosecution that, when
Panchasheela was taking education at Kinwat four accused use
to pay visit to her room and tease her. They use to write letters
to her, however, said letters were destroyed by the deceased
fifteen days prior to date of incident. It is further case of the
prosecution that, Panchasheela received one letter, alleged to
have been written by one of the accused in which Panchasheela
was given threats that, if at all she marries to any other person,
than the writer of the said letter, her married life would be
rendered miserable and difficult, because she has committed
treachery by refusing to marry the writer. The said letter had
been retained by accused No. 4/Manoj till Panchasheela’s death
and subsequently delivered to Nivratti brother of the
Panchasheela. It is further case of the prosecution that, contents
of the said letter caused adverse impact and, therefore, she
committed suicide by jumping into the well in the field of her
father at Ashta on 02nd December, 1992, at about 12.00 mid
night.
3. PSI Gaikwad/P.W. 4 investigated into A.D. No.10/1992. He
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visited the spot of incident. The spot panchanama was drawn
and other necessary steps were taken. P.W. 4 carried further
investigation as per procedure.
4. During the course of investigation of said A.D. No. 10/1992,
one inland letter was produced to PSI Gaikwad/P.W.4 on
27.02.1993. That letter was received by deceased Panchasheela
about 15 days prior to the incident. According to the prosecution
said inland letter contained the threats. Said letter was seized
as per panchanama Exh. 73. The Investigating Officer sent that
letter to the hand writing expert with the specimen hand
writing of the four accused for comparison and examination by
the hand writing expert. It is the case of the prosecution that,
the Panchasheela committed suicide since said letter caused
severe impact on her mind and led her to commit suicide.
5. After completing investigation the I. O. filed the charge
sheet U/Sec. 306 r/w Sec. 34 of the Indian Penal Code. The
charge was framed against the four accused. They were given
opportunity to put forth their case.
6. During the course of trial it was noticed that though the
specimen hand writing of the accused was collected by PSI
Gaikwad and was sent to the hand writing expert. There was no
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report and opinion of the hand writing expert. Therefore, the I.
O. was summoned to the Court. Thereafter, the prosecution did
produce on record report of hand writing expert Shri.
Biradar/P.W. 5. The P.W. 5 opined that disputed hand writing in
the said inland letter is of Sidharth i. e. appellant herein.
7. The Trial Court framed points for its determination and
after full fledged trial convicted the appellant herein for the
offence punishable U/Sec. 306 of Indian Penal Code and
sentenced to suffer Rigorous Imprisonment for three years and to
pay fine of Rs. 2,000/- in default to suffer further R. I. for six
months. However, other three accused persons came to be
acquitted from all the charges. The appellant herein was in the
custody from 02nd March, 1993 to 19th March, 1993 and said
period is given set off to the appellant/accused.
8. In this case the material evidence collected by the
prosecution is opinion of the hand writing expert at Exhibit – 121.
9. The learned counsel appearing for the appellant submitted
that, the evidence of the prosecution witness suffers from
omission, material contradictions and exaggerations and,
therefore, same is not trustworthy. The counsel invited my
attention to the contents of A. D. report and also complainant
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and also to the evidence of the prosecution witnesses and
submitted that, when A.D. was registered P.W. 2/brother of the
deceased has not stated anything against any of the accused. On
the contrary his case was that, Panchasheela now deceased was
of hot tempered and she committed suicide. He has no any
suspicion about anybody. The counsel further submitted that,
the alleged recovery of the letter from the accused No. 4/Manoj
after the death of Panchasheela and relying on said evidence
conviction of the appellant cannot be sustained. It is further
submitted that, P.W. 2 submitted inland letter which is recovered
from accused/Manoj after two and half months after the date of
incident. It is further submitted that in his complaint P.W. 2 has
never stated that the appellant herein was teasing and visiting to
the room of the Panchasheela, when she was prosecuting her
studies at Kinwat and at the relevant time staying in the hostel.
The sum and substance of the argument of the counsel for the
appellant is that, merely relying on the letter which was
recovered from the Manoj/accused No. 4, conviction in case of
appellant should not have been there. It is not the case of the
prosecution that, the said letter is recovered from the house of
the deceased or from her parents. The counsel for the appellant
further submitted that, entire prosecution story is vague. The
evidence of the prosecution witnesses suffers from material
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discrepancies and prosecution has not dealt with the case with
fair approach. Therefore, the counsel for the appellant would
submit that, this appeal may be allowed.
10. On the other hand, learned Additional Public Prosecutor
appearing for the state submitted that, the Sessions Court has
given cogent reasons while convicting the appellant. Therefore,
this Court may not interfere with the impugned judgment and
order and appeal deserves to be dismissed.
11. I have given due consideration to the rival submissions. I
have carefully perused the impugned judgment, entire material
placed on record by the appellant and also original record and
proceedings received from the Trial Court. The entire
prosecution story revolves around the letter at Exh. 130. It is
also the prosecution case that said letter is recovered from
Manoj/accused No. 4 after the date of incident. The careful
perusal of the impugned judgment, letter Exhibit 130, it clearly
emerges that, the conviction of the appellant is mainly based
upon Exhibit 130. The Trial Court in para 13 has commented
upon the Exhibit 130, and the contents of the letter and recorded
the conclusion that writer of the said letter did not like
Panchasheela’s marriage being performed with any other person
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than him because he was having love with Panchasheela.
Instead of this Panchasheela was going to be married with some
other person. The letter further contains that, Panchasheela had
promised in written to marry him, but the writer got annoyed
because she did not keep that word. The inland letter does
contain the threats by the writer to Panchalsheela that, he would
never allow her to lead happy married life, but would always
create the trouble and put thorns in her way. If the letter at
Exhibit 130 is read as a whole it does appear that the writer had
the firm determination to give trouble to Panchasheela in case
she marries with a person other than the writer. (emphasis
supplied).
Therefore, it appears from the perusal of the impugned
judgment that, the Trial Court after perusal of the said letter
reached to the conclusion that, it is the firm determination of the
writer to give trouble to Panchasheela in case she marries with a
person other than the writer. It is not in dispute that, said letter
was written by the writer of the said letter on 14.07.1992 and as
per the prosecution case the Panchasheela, now deceased
committed suicide in the night intervening between 02nd and
03rd December, 1992. It is also not in dispute that at the
relevant time, when Panchasheela committed suicide, she was
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staying in her parents house. She was not at Kinwat and it has
come in the evidence of P.W. 2/complainant that six months prior
to the date of incident she is at her parents home at village
Ashta, Tq. Kinwat. The prosecution case is that, Panchasheela
was studying at Kinwat and stayed in some hostel along with one
other girl in her room. It is further case of the prosecution that,
the appellant herein was studying in 11th class and the
Panchasheela was studying in 12th class. The appellant and
other three accused namely Rajesh, Vinod and Manoj use to
trouble and tease Panchsheela. They use to go to the hostel to
tease her. However, at the cost of repetition, it has to be
mentioned that, from six months prior to the date of incident
Panchasheela was continuously staying with the parents at
village Ashta and not at Kinwat.
12. The impugned judgment observes that, the specimen
writing of each of the accused was sent to the hand writing
expert and hand writing expert P.W. 5 opined that, the writing in
the letter at Exhibit 130 is by the appellant/Sidharth. On
perusal of entire evidence, it appears that, this is the main basis
to convict the appellant/accused. However, if the evidence of the
prosecution witnesses is perused in its entirety and more
particularly the evidence of P.W. 2/Nivratti the brother of the
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deceased Panchasheela, he has on more than one occasion has
stated in his examination in chief and also in the cross
examination that, other accused i. e. accused No. 2 Rajesh and
accused No. 3/Manoj used to write letters to the Panchasheela
and there was some knowledge to the mother of the
Panchasheela and complainant about writing such letters.
However, so far as writing letters by the appellant/accused prior
to the date of incident is not stated by P.W. 2 in his entire
evidence. He has stated that he has heard from some other
person from his village that, the appellant has eloped love with
Panchasheela, but he did not enquire this fact from
Panchasheela.
Upon perusal of the entire evidence of P.W. 2, who is the
star witness for the prosecution, it appears that, he has given
greater roll to the Rajesh/accused No. 2 and he has stated that he
use to write letter and also use to give threats to the
Panchasheela deceased and also once he came to the agricultural
field of the complainant, since deceased Panchasheela was
avilable there in the agricultural field at the relevant time.
However, the accused No. 2/Rajesh is acquitted by the Sessions
Court along with two other accused who were tried along with
the appellant.
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13. Since the conviction is awarded to the appellant U/Sec. 306
for abetment to commit suicide, it would be relevant to refer to
important sections. Section 107 of the Indian Penal Code reads
thus :
“107. Abetment of a thing.– A person abets the
doing of a thing, who —
First.– Instigates any person to do that thing; or
Secondly,– Engages with one or more other prsons
or persons in any conspiracy for the doing of thatthing, if an act or illegal omission takes place in
pursuance of that conspiracy, and in order to the
doing of that thing; or
Thirdly.– Intentionally aids, by any act or illegalomission, the doing of that thing.
Explanation 1.– A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,voluntarily causes or procures, or attempts to cause
or procure, a thing to be done, is said to instigate the
doing of that thing.”
Section 306 of the Indian Penal Code reads thus :
“306. Abetment of suicide.– If any person
commits suicide, whoever abets the commission of
such suicide, shall be punished with imprisonment
of either description for a term which may extend to
ten years, and shall also be liable to fine.”
14. In case of suicide how the evidence is required to be
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appreciated has been stated by the Hon’ble Supreme Court in
number of judgments. In State of West Bengal v. Orilal
Jaiswal (1994) 1 SCC 73, the Hon’ble Supreme Court has
cautioned that the Court should be extremely careful in
assessing the facts and circumstances of each case and the
evidence adduced in the trial for the purpose of finding whether
the cruelty meted out to the victim had in fact induced her to end
the life by committing suicide. If it appears to the court that a
victim committing suicide was hypersensitive to ordinary
petulance, discord and differences in domestic life quite common
to the society to which the victim belonged and such petulance,
discord and differences were not expected to induce a similarly
circumstanced individual in a given society to commit suicide,
the conscience of the court should not be satisfied for basing a
finding that the accused charged of abetting the offence of suicide
should be found guilty. Further the Hon’ble Supreme Court in
case of Chitresh Kumar Chopra v. State (Govt. of NCT of
Delhi) (2009) 16 SCC 605 had an occasion to deal with this
aspect of abetment. The Court dealt with the dictionary meaning
of the words “instigation” and “goading”. The Court opined that
there should be intention to provoke, incite or encourage the
doing of an act by the latter. Each person’s suicidability pattern
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is different from the other. Each person has his own idea of self
esteem and self respect. Therefore, it is impossible to lay down
any straitjacket formula in dealing with such cases. Each case
has to be decided on the basis of its own facts and circumstances.
15. The Hon’ble Supreme Court in case of Amalendu Pal @
Jhantu vs. State of West Bengal reported in 2010 AIR (SC)
512, after considering various earlier judgments in para 15
observed that,
“15. Thus, this Court has consistently taken the
view that before holding an accused guilty of an
offence under Section 306 IPC, the Court must
scrupulously examine the facts and circumstances of
the case and also assess the evidence adduced before
it in order to find out whether the cruelty and
harassment meted out to the victim had left the
victim with no other alternative but to put an end to
her life. It is also to be borne in mind that 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 306
IPC is not sustainable.”
“16. In order to bring a case within the purview of
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Section 306 of IPC there must be a case of suicide
and in the commission of the said offence, 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
offence must be proved and established by the
prosecution before he could be convicted under
Section 306 IPC.”
16.
The Hon’ble Supreme Court in the case of Randhir Singh
v. State of Punjab (2004) 13 SCC 129 has reiterated the legal
position as regards Section 306 IPC which is long settled in para
12 and 13. Para 12 and 13 reads thus :
“12. Abetment involves a mental process of
instigation a person or intentionally aiding that
person in doing of a thing. In cases of conspiracy
also it would involve that mental process of enteringinto conspiracy for the doing of that thing. More
active role which can be described as instigating or
aiding the doing of a thing is required before a
person can be said to be abetting the commission ofoffence under Section 306 IPC.
13. In State of W. B. v. Orilal Jaiswal this Court
has observed that the courts should be extremely
careful in assessing the facts and circumstances of
each case and the evidence adduced in the trial for
the purpose of finding whether the cruelty meted out
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14 cri appeal 243.99by committing suicide. If it transpires to the court
that a victim committing suicide was hypersensitiveor ordinary petulance, discord and differences in
domestic life quite common to the society to which
the victim belongs and such petulance, discord anddifferences were not expected to induce a similarly
circumstances individual in a given society to
commit suicide, the conscience of the court should
not be satisfied for basing a finding that the accusedcharged of abetting the offence of suicide should be
found guilty.”
17. Upon perusal of the judgments of the Hon’ble Supreme
Court cited supra, it is required to be borne in mind that in cases
of alleged abetment of suicide, there must be proof of direct or
indirect acts to the commission of suicide. Merely on the
allegations of harassment without there 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 Sec. 306 of I. P. Code is not sustainable. Therefore,
what is required is that, unless there is 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
U/Sec. 306 is not sustainable.
18. In this background it would be appropriate to scan the
evidence of the prosecution witnesses. According to the
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prosecution story as stated earlier Panchasheela committed
suicide in the intervening night between 02nd and 03rd
December, 1992. On the next date i. e. on 03rd December, 1992
P.W.2/Nivratti brother of the deceased Panchasheela went to the
police station and stated in his report that on 02nd December,
1992 during night time at about 12.00 a.m. Panchasheela (now
deceased) told her sister Trisheela that I am going out to answer
the nature’s call. She did not return back. My father got up at
about 5.00 a.m. in the morning saw that the door of the house
from the Western side is open. Then father awakened my
mother, sister and started asking whether Panchasheela has
gone. Complainant along with father and other persons from the
village went to near by fields and other places and ultimately
they found that Panchasheela’s dead body in the well which is
situated in their own agricultural land. They saw that
Panchasheela’s sandle and one white cloth is lying near by that
well. Thereafter, they called other persons from the village and
narrated the incident.
P.W. 2 Nivratti further stated that, my sister went to
answer the call of nature and perhaps died by falling in the well.
My sister was hot tempered and she was not use to tolerate any
irrelevant talk. I do not know how she has fallen in the well and
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I have no suspicion or doubt about anybody.
19. Therefore, the report of the Nivratti which was recorded on
03.12.1992 at police station does show that, the brother of the
deceased Panchasheela did not express slightest doubt or
suspicion about any of the accused persons. He has categorically
stated in his statement that, sister of the P.W. 2 was hot
tempered and she was not accustomed to tolerate irrelevant talk.
20. It further appears that on the basis of the statement of the
Nivratti, A.D. was registered. It further appears that on 29th
February, 1993, one Mr. Anil Narayanrao Gaikwad, PSI, Police
Station Mahur has lodged the complaint with police station
stating therein that after recording the statement of Nivratti on
03.12.1992, this officer made enquiry with the relatives of the
deceased and upon enquiry he found that, fifteen days prior to
the date of the incident Panchasheela did received one
anonymous letter in which it was written that I will see that how
you can perform the marriage, you have treached me. You have
finished me and I will see that your life is spoiled and upon
reading such letter Panchasheela might have committed suicide,
because of impact of said letter and thereafter, he sought
permission to add Section 306. He further states that it revealed
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from the enquiry with the relatives of the deceased about the
incident and relatives told them that they have doubt about
Sidharth Narayan Kamble, Rajesh Sitaram Khare, Vinod
Krishnaji Khare and Manoj Pundalik Muneshwar resident of
Ashta that, they might have written letter to the deceased
Panchasheela. Therefore, the complaint was lodged against
these four accused stating therein that by entering into
conspiracy and by threatening the accused have abeted the
commission of suicide and, therefore, they are liable to be tried
and convicted for the offence punishable U/Sec. 306, 507 r/w Sec.
34 of the Indian Penal Code.
21. As stated earlier, it is admitted position that, the said
letter at Exhibit 130 was in the possession of accused No.
4/Manoj. According to the P.W. 2 it was handed over to him by
Manoj. Therefore, it follows that on the date of incident or prior
to that said letter was in the custody of Manoj. The prosecution
has not brought anything on record to show that said letter was
in the possession of either deceased or her family members.
There is only assertion of the prosecution witnesses that such
letter was received by the deceased 15 days prior to the date of
incident. However, there is no evidence placed on record to
suggest that said letter was actually in the possession of the
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deceased and she had read it 15 days prior to date of incident.
On the contrary, it is the case of the prosecution that, letter at
Exhibit 130 was handed over/recovered from accused No. 4/Manoj
after the date of incident. It has also come in the evidence that
accused No. 4/Manoj is close relative of the family of the
deceased.
22. Now it would be appropriate to refer to the evidence of P.W.
2 before the Additional Sessions Judge, Nanded. His evidence is
at Exhibit 52. His statement is recorded before the Court during
the trial in the year 1997. P.W. 2 Nivratti in his examination in
chief has stated that, deceased Panchashella his sister was
unmarried. At the time of incident she was of 19 years old. She
committed suicide. She had received some letters. The letters
were anonymous. In those letters Panchasheela was given
threats that her marriage will not be allowed to be performed.
We got only one letter out of them. It was with one
Manoj/accused No. 4. After the death of Panchasheela,
Manoj/accused No. 4 on the next day morning came to me and
delivered that letter to me. When I was writing report regarding
her death, Manoj remanded us of the said letter and produced it
before me. I delivered that letter to PSI during enquiry of the
alleged report to the police that Panchasheela committed suicide
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in our field, because she was unable to bear allegations of threats
in the letter. At this stage, it would be appropriate to comment
about the aforesaid evidence of P.W. 2 in the examination in
chief. It is clear that, the complainant according to his version
has received letter from Manoj/accused No. 4 on 03rd December,
1992. Prior to that said letter was not in possession of either
Panchasheela or complainant or any other family member of the
complainant. Therefore, the Panchasheela, now deceased had no
occasion to read said letter or contents of such letter. The
prosecution has utterly failed to bring anything on record to
prove that the said letter was received by Panchasheela and by
reading said letter she had impact on her mind and ultimately
committed suicide. Secondly, if said letter was received by the
Nivratti on 03rd December, 1992, why there is no mention in his
report to the police station on 03rd December, 1992 about the
said letter. On the contrary in his statement on 03rd December,
1992, Nivratti stated that as Panchasheela was hot tempered girl
and she was not use to tolerate irrelevant talk and she
committed suicide. He has further stated that, he has no any
doubt or suspicion about anybody. He has not referred single
word about the letter or about any of the accused. Therefore,
conviction based upon such evidence which is contrary to first
statement of the Nivratti on 03rd December, 1992 cannot form
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basis for the conviction of the appellant/accused.
23. P.W. 2 Nivratti in his examination in chief has further
stated that, his mother told him that Panchasheela was talking
about the letter. Mother told me that Panchasheela was asking
for the letter, but she was not giving the letter. She was not
getting letter from Manoj. She was telling the mother to go to
Manoj to bring the letter since four days. This statement of the
P.W. 2/Nivratti appears to be blatant lie, since nothing has been
mentioned by him in his statement before the police on 03rd
December, 1992 about what is told by his mother and by him to
the mother. On the contrary this witness further stated in his
examination in chief that, mother told him that at the relevant
time Panchasheela was in angry mood and, therefore, she might
have jumped in the well. He has further admitted that he did
lodge report with the police station Mahur. He also identified his
signature and its contents. Therefore, the earliest opportunity to
tell the truth was on 03rd December, 1992 and rightly the P.W. 2
had stated to the police officer that the Panchasheela was hot
tempered girl and he had no suspicion or doubt about anybody.
There is no mention about said letter in his report on 03rd
December, 1992 to the police officer.
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P.W. 2/Nivratti has further stated in his evidence that
Rajesh/accused No. 2 and Vinod/accused No. 3 use to write the
letters and drop them into post. They are addressed to
Panchasheela. Panchasheela use to get those letters from
postman. My mother told me that Panchasheela was talking
about the letter. Mother told me that Panchasheela was asking
for the letters but she was not given letter by Manoj. The
aforesaid contention of the P.W. 2 has been reiterated by him at
many places in his deposition and also in the cross examination.
In his entire deposition he has no where stated that, the
appellant Sidharth use to write letter to the Panchasheela (now
deceased) and she used to receive such letters. So far accused
No. 1 Sidharth is concerned, general allegations are made in the
complaint that Panchasheela told him that Vinod/accused No. 3
and Sidharth accused No. 1 use to go to her room and tease her.
It is further stated by this witness that, Rajesh also use to visit
to her room and he use to tease her and Panchasheela herself
disclosed these things to him. These are the general allegations
made against all the accused. At this juncture it is relevant to
mention that, P.W. 2 has stated in his evidence that, since the
Panchasheela failed in the examination of 12th class, we stopped
her education and brought her to our house. This witness has
admitted that, six months prior to the date of incident,
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Panchasheela was brought to the village and since then she was
staying in their house. Therefore, whatever has happened during
the time when she was prosecuting the studies was six months
prior to the date of incident. Therefore, the general allegations of
the P.W. 2 that the appellant along with other accused use to
tease the Panchasheela even if assumed to be correct, said cannot
be said to be in immediate proximity or soon before the date of
incident and, therefore, as a result of said teasing the
Panchasheela committed suicide.
P.W. 2 has also stated in his evidence that, he saw Rajesh
accused No. 2 having entered in their field, when Panchasheela
was plucking the cotton crop. He gave some whistles for
Panchasheela. At that time he was in the field. Seeing him
Rajesh went back to his field. It has also came in the evidence of
this witness that in the field Rajesh threatened Panchasheela by
showing knife. P.W. 2 has further stated that, “Panchasheela
committed suicide because of the letters written by
Rajesh/accused No. 2. Some defamatory chits were pasted on the
door or our house. Rajesh/accused No. 2 had come to our house
to sing a Bhajan. According to me, defamatory chits were pasted
by though, I did not see him doing so.” (Emphasis supplied)
Therefore, it follows from the version of this witness P.W/2 that
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Rajesh was responsible for the commission of suicide by the
Panchasheela. Therefore, the evidence of the prosecution that
the letter allegedly written in the month of July, 1992 was in the
hand writing of the appellant and, therefore, he is responsible or
he has abeted commission of suicide or he had intention to forse
the Panchasheela to commit suicide has no force. The evidence of
P.W. 2 totally negativates the story of the prosecution that the
appellant herein was responsible for the suicide of the
Panchasheela and said has been abated by the appellant. It is
pertinent to note that, except appellant herein all the other
accused including Rajesh are acquitted by the Sessions Court.
P.W. 2/has admitted in his cross examination that, he had
not shown letter to the police on 03rd December, 1992. He does
not remember the date when he showed the letter to the police.
He further contends that about 8 to 15 days after incident of
Panchasheela’s death, he showed the letter to the police. He
further contends that my mother knows about that letter,
however he has no personal knowledge about the said letter.
This witness specifically states that, “it is a fact that
Panchasheela was hot tempered. She could not bear falsecity.
We stopped her college education about one year before she died.
Though, she failed Panchasheela had a desire to take education”.
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24 cri appeal 243.99
(Emphasis supplied). Therefore, it has clearly appeared in the
evidence of P.W. 2 that, the deceased was hot tempered and her
education was stopped one year prior to the date of incident. It is
also relevant to mention that one female partner was in the room
of Panchasheela and she lived with her in the hostel. However,
the another partner was not examined by the prosecution on the
point of teasing by the accused to Panchasheela. This witness
P.W. 2 has further admitted in the cross examination that,
Sidharth/accused No. 1 was in 11th class and Panchasheela was
in 12th class. They have never in the same class. At this
juncture it is relevant to mention that on plain reading of the
said letter it does appear that writer of the said letter is
classmate of the deceased Panchasheela. However, the evidence
of P.W. 2 as stated hereinabove clearly shows that the
appellant/accused was not classmate of the deceased
Panchasheela. This witness has further stated in the cross
examination that, Manoj/accused No. 4 is his mother’s sisters
son. This witness further refers to his statement recorded by the
police in February 1993. He has also reiterated his version in his
examination in chief that Rajesh and Vinod used to write letters
to Panchasheela and she has received those letters and some of
them were burnt by her. That, only one went in the hands of
Manoj which he refused to give that to Panchasheela. Rajesh
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25 cri appeal 243.99
and Vinod were residing at Kinwat. Therefore, P.W. 2 has never
stated that the appellant/accused Sidharth use to write lettes to
the Panchasheela. The appellant/accused is only convicted on the
basis of said letter holding that the hand writing in the said
letter is of the appellant/accused as stated by the hand writing
expert/P.W. 5. Since the other three accused persons are
acquitted and more particularly accused No. 2/Rajesh against
whom the P.W. 2 has unequivocally stated in his deposition that,
he use to write letters to Panchasheela and also he has
threatened to Panchashella, has been acquitted.
24. The prosecution has examined Sangita as P.W. 3. Her
evidence is at Exhibit 57. She has stated in her examination in
chief that, deceased Panchasheela was the sister of her father.
Panchasheela died about five years back. She committed suicide
by drowning in the well. She committed suicide because some
boys troubled her. Those boys are four in number. On careful
perusal of the examination in chief of the said witness nothing
specific has been attributed against the appellant/accused
herein. She has stated that accused Manoj was having such
letter, but he did not give to anybody. Panchasheela was asking
said letter to Manoj, but Manoj did not hand over said letter to
Panchasheela. Manoj gave that letter to her mother on next day
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26 cri appeal 243.99
of Panchasheela’s death. In her cross examination she has
reiterated that the letter was handed over by Manoj to her
mother on next day after Panchasheela’s death.
25. The prosecution examined P.W. 4 Anil Gaikwad as witness.
His evidence is at Exhibit 71. In his deposition he has stated
that, during the period from August 1991 to August 1993 he was
attached to Mahur police station as PSI. On 03.12.1992 one
Nivratti came to him and stated that, his sister Panchasheela
committed suicide by drowning. Upon his report A.D. No.
10/1992 U/Sec. 174 of Cr. P. C. was registered. He investigated
said A. D. Visited the spot of incident at village Ashta and
further investigated into the matter. Inquest panchanama was
prepared. Dead body was forwarded for postmortem
examination. He recorded statements of the witnesses. He
recorded statement of Nivratti on 27th February, 1993 in which
he stated that, there is suspicion against four persons saying that
they are responsible for suicide of his sister Panchasheela.
Therefore, he filed complaint. He registered complaint as Cr. No.
15/1993 U/Sec. 306 of I. P. Code against the four persons namely
Sidharth Kamble, Vinod Khare, Rajesh Khare and Manoj
Muneshwar on 28th February, 1993. The accused were arrested
on 01st March, 1993. Their hand writing specimen were
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27 cri appeal 243.99
obtained and were sent to hand writing expert and also inland
letter was sent to the hand writing expert for his opinion. He
further stated that, as the hand writing expert’s report was not
received, nor the inland letter and specimen hand writing of the
accused from the office of Government Hand Writing Expert was
received. Therefore, he went to Aurangabad on 28.07.1997 and
on 29.09.1997 he collected the documents. This witness has
admitted in his cross examination that till the date of recording
his evidence before the Court he did not produce any
acknowledgement issued from the Government Hand Writing
Expert. He has specifically stated that, in the statement of
Nivratti recorded by him, he did not state before him that
accused No. 4 had brought and gave inland letter to him. He
further stated that, Nivratti did not tell that, at the time when
he was writing report on 03.12.1992, Manoj delivered inland
letter to him and he produced it before the police. Sangita in her
statement before him did not state that, accused persons were
showing knife to Panchasheela or that they were insisting
Panchasheela to allow them to do and were following her at the
time of easing or that four accused were threatening
Panchasheela, that they would not allow her marriage to be
performed, or that accused had written letter to Panchasheela.
She also did not tell before him in her statement that either
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28 cri appeal 243.99
Manoj delivered one letter to the mother of Panchasheela or that
Panchasheela was demanding that letter from Manoj or that he
was refusing or that Manoj delivered that letter to her mother on
next day after Panchasheela’s death.
26. Therefore, upon perusal of the evidence of this witness who
was the Investigating Officer in the investigation it is clear that
what is stated by the Sangita before Court was not stated by her
before him during the course of investigation. Therefore, the
evidence of Sangita before the Court becomes untrustworthy or
rather improvement. As stated earlier, P.W. 2 has filed the
report on 03.12.1992 in which he has specifically stated that,
Panchasheela was hot tempered girl. She has committed suicide
and P.W. 2 has no any suspicion or doubt about anybody. P.W. 2
has stated that Manoj has delivered letter at Exh. 130 him on
03rd December, 1992. However, P.W. 4 has stated in his evidence
that, when statement of Nivratti was recorded by him he did not
tell said fact to the P.W. 4. The P.W. 4 has further stated that,
P.W. 3 Sangita has also not stated before him that, the letter was
delivered by Manoj to P.W. 2 on 03rd December, 1992.
27. Perusal of the letter itself shows that said letter is written
on 14.07.1992. The incident in question had taken place on 02nd
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29 cri appeal 243.99
December, 1992. Admittedly, the Panchasheela was not staying
at Kinwat for prosecuting her studies from more than six months
prior to date of incident. P.W. 2/Nivratti in his deposition before
the Court repeatedly stated that accused No. 2 and accused No. 3
use to write letters to Panchasheela, however, in his statement
nowhere he has stated that, present appellant Sidharth who was
accused No. 1 has written any letter to Panchasheela and to that
effect Panchasheela told him that accused Sidharth has written
letter to him. Admittedly, the letter at Exh. 130 was received
from accused No. 4/Manoj by P.W. 2/Nivratti after the date of
incident. Admittedly, there is nothing stated about the said
letter by Nivratti in his report to the police on 03rd December,
1992. On careful perusal of the said inland letter at Exh. 130,
the name of the present appellant is not appearing anywhere.
The name is written as ‘Premkumar’. Therefore, upon careful
perusal of the entire evidence brought on record by the
prosecution, there are material contradictions, improvements
and omissions in the evidence of the witnesses and material
variance in the version of P.W. 2, P.W. 3 and P.W. 4, therefore, to
sustain conviction of the appellant on such shaky evidence is
impossible. As stated earlier, the said letter is written by one
Premkumar and there is no name of the appellant on the said
inland letter at Exh. 130. The Trial Court has reached to the
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30 cri appeal 243.99
conclusion that, the letter at Exh. 130 has been written by
accused No. 1/Sidharth, as this letter has caused an impact on
the mind of Panchasheela, she had taken a drastic decision to put
an end to her life. Sidharth has provided her with the instigation
caused by the letter at Exh. 130 and hence he is liable for
abetment to commit suicide by her and, therefore, he is guilty of
the offence U/Sec. 306 of the I. P. Code. With respect to the
findings recorded by the Trial Court, it is to be observed that,
said finding of the Trial Court are far from settled legal position
by catena of decisions of the Hon’ble Supreme Court. Even if, it
is assumed that, letter at Exh. 130 was written by the appellant
to the Panchasheela, (now deceased), upon perusal of entire
evidence brought on record by the prosecution it cannot be said
that, Panchasheela had occasion to read this letter. In fact, it is
the consistent version of all the prosecution witnesses including
P.W. 2 that, the said letter at Exh. 130 was in possession of
accused No. 4/Manoj and same was delivered after the date of
incident. Nothing has been brought on record by the prosecution
to suggest that, the said letter at Exh. 130 was read by the
Panchasheela and due to contents of that letter she committed
suicide. As per the prosecution story said letter was written on
14.07.1992, Panchasheela committed suicide on 02nd December,
1992. As stated earlier, Hon’ble Supreme Court in case of
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31 cri appeal 243.99
Amalendu Pal @ Jhantu vs. State of West Bengal reported
in 2010 AIR (SC) 512 in para 15 held that, i t is also to be borne
in mind that 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 306 IPC is not
sustainable. (emphasis supplied).
The prosecution has not brought anything on record about
what has happened from 14th July, 1992 till 02nd December, 1992.
There is no any evidence muchless specific evidence brought on
record by the prosecution against the appellant that he was
teasing or instigating the Panchasheela or he has played roll in
abetment of the suicide of the Panchasheela. It has come on
record that prior to six month of the date of incident,
Panchasheela was brought from Kinwat to her parental home.
The another important aspect of the matter is that, it has
come in the evidence of P.W. 2/Nivratti brother of Panchasheela
that Panchasheela was hot tempered girl. In this respect it is to
be observed that, that is one of the fact which should have been
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32 cri appeal 243.99
taken seriously into consideration by the Trial Court. In my
opinion, the Trial Court has not given any thought, muchless
serious thought to these factors. The Hon’ble Apex Court, time
and again reminded that, such facts are required to be taken into
consideration while entertaining cases relating to offences which
falls U/Sec. 306 of I. P. Code.
28. Therefore, if the prosecution evidence is taken into
consideration in its entirety, the said evidence is not only short to
sustain the conviction, but it appears that, prosecution has not
approached the case with truthful version. At the cost of
repetition, it is to be stated that, Nivratti/P.W. 2 in his report on
the second day of incident has specifically stated that
Panchasheela was hot tempered girl and she has committed
suicide. He has no suspicion or doubt about anybody. There is
no mention about letter at Exh. 130 in the said report.
Therefore, taking into consideration the exposition of Hon’ble
Apex Court in various cases which are cited herein above and
taking into consideration the entire evidence brought on record
by the prosecution, the provisions of Section 107 of the I. P. Code
and also Sec. 306 of the Indian penal Code, I am of the opinion
that, the prosecution has utterly failed to establish the case
against the appellant/accused. Therefore, the Trial Court was
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33 cri appeal 243.99
not correct in convicting the accused/appellant for the offence
U/Sec. 306 of the Indian Penal Code. It cannot be said that by
the said letter which was allegedly written, by the
accused/appellant he had intention or had abeted for the
commission of offence. In my opinion, there is no any direct aid
or abetment by the appellant/accused, even according to the
prosecution. Therefore, taking over all view of the matter, in my
opinion, the impugned judgment and order deserves to be set
aside. Therefore, the impugned judgment and order dated 21st
May, 1999 passed by the Joint District and Sessions Judge,
Nanded in Sessions Case No. 191/1994 thereby convicting the
appellant for offence punishable under Section 306 of I. P. C. and
sentencing him to undergo R. I. for three months and to pay a
fine of Rs. 2000/-, in default, to suffer further R. I. for six months,
is quashed and set aside. The appellant is acquitted of the
charges leveled against him. His bail bonds shall stand
cancelled. Record and Proceedings be sent back to the concerned
Court.
Sd/-
[ S. S. SHINDE, J.]
bsb/Jan. 11
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