Full Judgement
Bombay High Court
The State Of Maharashtra vs Azhar Akhtar Patel And Anr on 7 February, 2024
2024:BHC-AUG:2592
-1- Cri.Appeal.641.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 641 OF 2016
Sabiya Begum Akbar,
Age : Major, Occu. : Household,
R/o. : Patil Galli, Ahmedpur, Tq. Ahmedpur,
Dist. Latur. ... Appellant.
Versus
1. The State of Maharashtra,
Through Police Station,
Officer, Police Station of Ahmedpur,
Tq. Ahmedpur, Dist. Latur.
2. Azhar Akhtar Patel (Pathan)
Age : 51 years, Occu. : Agri.,
3. Anis w/o Azhar Patel (Pathan)
Age : 46 years, Occu. : Household,
Both residence of Patil Galli, Ahmedpur,
Dist. Latur. ... Respondents.
...
Mr. Fayaz K. Patel, Advocate for Appellant.
Mr. N. D. Batule, APP for Respondent - State.
Mr. H. I. Pathan, Advocate for Respondent Nos.2 and 3.
...
WITH
CRIMINAL APPLICATION NO. 4477 OF 2016
The State of Maharashtra,
Through Police Station Ahmedpur,
Dist. Latur. ... Applicant.
(Orig. Complainant)
Versus
1. Azhar Akhtar Patel [Pathan],
Age : 50 years, Occu. : Agri.,
2. Anis w/o. Azhar Patel [Pathan],
Age : 45 years, Occu. : Household,
Both R/o. Patil Galli, Ahmedpur,
Tq. Ahmedpur, Dist. Latur. ... Respondents.
(Orig. Accused)
-2- Cri.Appeal.641.2016
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 29th JANUARY 2024
PRONOUNCED ON : 7th FEBRUARY 2024
JUDGMENT :
1. Matter was for admission. However, all parties made
extensive submissions, and therefore, after obtaining their
consent, main appeal itself was taken up for decision.
2. This is an appeal, wherein judgment and order of
learned Additional Sessions Judge, Ahmedpur, thereby acquitting
respondents - original accused from offence under section 306 read
with section 34 of Indian Penal Code (IPC) is taken exception to.
PROSECUTION CASE
3. On charge-sheet filed by Ahmedpur police station,
crime was registered for offence under section 306 read with
section 34 of IPC, alleging that, informant resided with his brother
under one roof with their respective families. There was said to be
dispute between brothers on account of partition. Daughter of
informant was abused and her uncle and aunt (accused persons)
pressurized her to ask her father to get partition done. They
abused her in filthy language and also raised quarrel with her by
saying that, "she should go to the road and dance or die". Because
-3- Cri.Appeal.641.2016
of such humiliation at their hands, it is the case of prosecution
that, deceased Rafia set herself ablaze. While in hospital, she
named her accused uncle and aunt, and therefore, her father
lodged report.
Investigation was carried out and on its completion,
both accused were charge-sheeted and finally tried by learned
Additional Sessions Judge. However, on appreciation of available
evidence, learned trial Judge acquitted the accused by its judgment
and order dated 05.05.2016, which is assailed herein.
SUBMISSIONS
4. Learned counsel for appellant would submit that,
respondents are solely responsible for suicidal death of Rafia. They
were residing jointly with deceased and her father who was
brother of accused no.1. Accused persons were insisting for
partition. Civil proceedings were also pending. That, on
18.12.2013, around 4:00 p.m., both accused abused deceased Rafia
in filthy language. They quarreled with her and asked her to insist
her father to get partition done. He submitted that, only because of
their such insulting and humiliating treatment, deceased went and
ignited herself in the house. It is pointed out that, they had said
her that she should go on the road and dance or die. She had
named both of them in the dying declarations. They had abetted
-4- Cri.Appeal.641.2016
the suicide and were solely responsible. There was no other reason
for deceased to commit suicide. According to learned counsel, all
necessary ingredients for abetment to suicide were available in the
prosecution evidence, which comprised of testimonies of 10
witnesses. However, learned trial court has not appreciated the
same in its correct perspective and has also not considered the
legal position. Acquittal is on flimsy ground, like non seizure of
kerosene can. That, unfortunately dying declarations are also kept
aside from consideration and hence judgment so passed by learned
trial Judge being illegal, cannot be allowed to be sustained.
5. Learned APP also supported the above submissions
and arguments by pointing out that, respondents were solely
responsible. That, eye witness account i.e of PW1 Sabiyabegam,
PW2 Vasim Akbar and PW4 Mohasin Akbar have not been
correctly appreciated. Deceased had named accused persons in
dying declarations and had sought accusation against them, but
learned trial court has acquitted both the accused and so according
to him, the impugned judgment is liable to be interfered with.
6. In answer to above, learned counsel for respondents
accused would submit that, prosecution has miserably failed to
establish the charges. According to him, very charge is misplaced
-5- Cri.Appeal.641.2016
as there is no evidence about any abetment or inducement.
According to him, accused never intended deceased to end up her
life. There was no mens rea. He pointed out that, prosecution
evidence was patently lacking regarding any inducement or
abetment to commit suicide. He pointed out that on the contrary
prosecution's very evidence suggested occurrence to be accidental
one while cooking. Deliberately different colour is given. That,
even AD was registered. Very cousin of deceased, who shifted her
to hospital had also reported accidental burns while cooking. He
also doubted the mental and physical fitness of deceased to give
two dying declarations. He submitted that, in fact, there was
already a partition, and therefore, no reason for quarrel as alleged.
In support of his submissions, he took this court through the cross
of Investigating Officer. Lastly, he submitted that, appreciation by
the learned trial Judge is in consonance with the evidence. There is
no perversity or illegality and so he prays to dismiss the appeal for
want of merits.
7. This court by virtue of powers under section 372 of
Cr.P.C. is called upon to re-appreciate, re-examine and re-analyze
the entire oral and documentary evidence in the court. On
undertaking such exercise, it is revealed that, case of prosecution
is rested on following 10 witnesses. Their status and role could be
-6- Cri.Appeal.641.2016
categorized and summarized as under :
PW1 Sabiyabegam, mother of deceased; PW2 Vasim
Akbar, brother of deceased Rafia; PW3 Ganesh, panch to scene of
occurrence; PW4 Mohasin akbar, another brother of deceased; PW5
Narayan, police official, who recorded dying declaration; PW6 Akhil
also a panch to scene of occurrence, PW7 Dr. Harshad Padmakar
and PW8 Dr. Dharmaraj Apparao, Medical Officer and Autopsy
Surgeon, respectively; PW9 Deelip Babarao, Naib Tahsildar, who
recoded dying declaration and PW10 PSI Pandit Kachave,
Investigating Officer.
Apart from above oral evidence, prosecution has relied
on documentary evidence, like FIR, spot panchanama and post
mortem report etc.
8. Admittedly, here, there is charge under section 306 of
IPC in order to bring home the charge for such offence, it is
bounden duty of prosecution to demonstrate existence of essential
ingredients of section 306 of IPC.
Section 306 of the IPC deals with abetment of suicide.
Ingredients of this section are as under :
"The accused kept on irritating or annoying the deceased by words, deeds or willful omission or conduct which may even be a willful silence until the deceased reacted, or pushed or forced the deceased
-7- Cri.Appeal.641.2016
by his deeds, words or willful omission or to conduct to make the deceased move forwards more quickly and (ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation."
9. Here, it is also desirable to briefly discuss the settled
legal position as regards to offence under section 306 of IPC and its
legal requirements.
By way of series of cases, scope and applicability of
Section 306 has been time and again decided and reiterated by the
Hon'ble Apex Court in the cases viz; Ramesh Kumar v. State of
Chhatisgarh reported in(2001) 9 SCC 618; Sanju @ Sanjay Singh
Sengar v. State of M.P. reported in(2002) 5 SCC 371; State of West
Bengal v. Indrajit Kundu and others reported in (2019) 10 SCC
188 and very recently in the case of V.P.Singh etc. v. State of
Punjab and others reported in 2022 SCC Online SC 1999.
In above series of cases, consistent view that has been
echoed that, at first count it must be shown that accused persons
intended that deceased should end up her life. With that object in
mind, they should deliberately create circumstances, which are of
such nature, that deceased is left with no other alternative but to
end up her life, only then charge of abetment to commit suicide can
be said to be successfully brought home. Inducement, incitement
-8- Cri.Appeal.641.2016
and essential requirements to attract said charge. As to what
amounts to abetment as per section 107 of IPC is also fairly settled.
10. Bearing above settled legal requirements in mind,
evidence in hand is put to be re-analysis. It is noticed that, the case
of prosecution is rested on oral evidence of mother and brothers as
well as dying declarations. This court first undertakes the scrutiny
of dying declaration and the same is at Exh.29. It seems to be
recorded on 22.12.2013 regarding occurrence which allegedly took
place on 18.12.2013. That means, dying declaration is recorded
after almost five days. Be it so. Deceased gave a statement that,
around 4:00 p.m on 18.12.2013, her paternal uncle and aunt said
to her to ask her father to get partition done, abused her in filthy
language and further said she should go on the road and dance or
die. Therefore, she could not tolerate such statement and getting
fed up poured kerosene and set herself on fire. Hearing shouts, her
mother doused the fire. Her brother and neighbours shifted her to
the hospital. She sought action against her uncle and aunt.
11. PW5 ASI Ranzunjare, who has recorded above dying
declaration is examined at Exh.25 and he deposed about receiving
wireless information, visiting the hospital, approaching doctor,
seeking his endorsement, about fitness to give statement and
-9- Cri.Appeal.641.2016
recorded her above dying declaration. He stated that, initially she
was admitted by her brother to Ahmedpur Rural Hospital, but later
on she was referred to Civil Hospital, Latur and while undergoing
treatment her statement was recorded.
In cross he has admitted that, no attempt was made to
record statement of deceased on 18.12.2013 and 19.12.2013. He
admitted that, MLC shows admission of deceased at Ahmedpur
Rural Hospital. He admitted that, at the time of his visit for
referring dying declaration, along with patient relatives were
present. Along with patient Anwar Patel was also present. He
admitted that, both the hands of patients were totally burnt and
bandage was applied. He answered that, it is not necessary to
obtain endorsement about identification of thumb impression. Rest
is all denial.
12. Second dying declaration is at Exh.52 seems to be
recorded by PW9 Deelip Mulaje, Naib Tahsildar on 22.12.2013
which is in question answer form. While answering question, how
incident occurred, statement is given that, accused her uncle and
aunt always said to her to ask her father to get house for partition
and troubled her. Therefore, on 18.12.2013 at 6.30 p.m, getting
fed up of the trouble, she ignited herself.
-10- Cri.Appeal.641.2016
13. Therefore, here, on minute scrutiny of above discussed
both dying declarations, it is apparent that, alleged occurrence is of
18.12.2013 between 4:00 to 4:30 p.m. It is also emerging that
incident had taken place in the house of deceased and deceased
was taken to Ahmedpur Rural hospital, but no efforts apparently
seems to have been taken to get her dying declaration recorded
promptly at such Rural hospital, Ahmedpur itself. Rather after five
days PW5 ASI Runzunjare and PW9 Deelip Mulaje seem to have
taken steps to record the dying declarations. In Exh.29 occurrence
is reported to have taken place around 4:00 to 4:30 p.m., whereas
Exh.52 occurred is shown to have taken place at around 6:30 p.m.
consequently, there is variance as to exactly and what time
occurrence took place. Answers given by PW5 ASI Ranzunjare in
cross clearly shows that Exh.29 was scribed in presence of
relatives of the patient. Such material shows that voluntariness of
declaration comes under shadow of doubt. Even there is no
identification beneath the thumb and that too is admitted by PW5
ASI Runzunjare. He further admitted that, both hands were burnt
and bandages were applied. Under such circumstances, question
that arises is how in such condition thumb impression can be
obtained. Therefore, apart from delayed recording of dying
declaration, that too in presence of relatives, above discussed
-11- Cri.Appeal.641.2016
aspects contributes to the credibility and veracity of the dying
declarations.
14. Now, let us go through the oral evidence adduced on
behalf of prosecution i.e. mother (PW1 Sabiyabegum), her
testimony is that, on 18.12.2013, both accused hold her daughter
to ask her father for partition of house and further asked her to go
on road and dance or die. Because of it, her daughter got mentally
hurt, she bolted door of the house from inside, poured kerosene on
her person and set her ablaze. She and her sons doused the fire and
took her to the hospital initially at Ahmedpur and subsequently at
Latur. While undergoing treatment, she succumbed on 23.12.2013.
She holds both accused responsible for the death of her daughter.
15. Though witness is subjected to extensive cross, it
would be desirable to deal and discussed only material cross. She
has answered that, her family has one house at Patil Galli and all
four brothers have share and one room is allotted to each of them.
She admitted regarding pending litigation in civil court amongst all
brothers. She further admitted that, during lifetime of her father-
in-law, he had made partition of agricultural land in 2001 and each
brother allotted four acre land. She admitted that, three brothers
agreed before the court that two acres agriculture land is given to
-12- Cri.Appeal.641.2016
Khurshidabegum as a Hiba, but her husband protested against the
said declaration and that there was grudge in their mind against
the accused. He further admitted that, her daughter was admitted
on 18.12.2013 till 23.10.2013, but none of them had lodged any
complaint against the accused. Rest is all denial.
16. PW2 Wasim Patel, brother of deceased deposed about
his sister setting herself on fire and he receiving phone call from
his mother to that extent and she being shifted to Ahmedpur
hospital and later on Civil Hospital, Latur. This shows that, he has
reached after the occurrence and whatever information he has is
hearsay.
PW3 Ganesh, spot panch has not supported
prosecution.
PW4 Mohasin also a brother of deceased deposed that,
while he was on work on 18.12.2023, he received phone call and he
was returned home. They brought her sister to Ahmedpur for
medical treatment and thereafter to Civil Hospital, Latur. He stated
that, while in hospital his sister gave dying declaration, naming
accused asking her to demand partition from her father and also
said to her to go on the road and dance or die. Initially, he stated
that. Accused said the above statement in his presence, but later
-13- Cri.Appeal.641.2016
on volunteered and answered that it was not said in his presence.
Rest is all denial.
PW5 ASI Ranzunjare, who recorded dying declaration
and his evidence is already discussed in aforesaid para.
PW6 Akhil Ahmed, panch to spot panchanam (Exh.36).
However, apparently, spot seems to have been drawn on
26.12.2013 almost after nine days of the occurrence. However, in
cross, he has admitted that, information was received that
deceased suffered burns while cooking.
PW7 Dr. Harshad Sonwane is the doctor who issued
certificate of fitness.
PW8 Dr. Dharmaraj is the autopsy doctor, who
conducted post mortem and opined about cause of death is
septicemia due to burns.
PW9 Deelip Mulaje, Naib Tahsilder, who recorded dying
declaration at Exh.52.
PW10 PSI Pandit Kachave is the Investigating Office.
17. Defence has adduced evidence of other paternal uncle
of deceased i.e DW1 Anwar. He seems to be brother of father of
deceased as well as brother of accused herein. His evidence is
-14- Cri.Appeal.641.2016
categorical in chief that, four brother had separated from each
other and resided separately and partition of family is already
done and each individual is having separate property. According
to him, he was present at the time of such incident. Deceased
suffered burns due to explosion of fire of a kerosene stove while she
was cooking and that she was taken to Rural Hospital, Ahmedpur
and later on to Latur and he also claims to have accompanied her.
He deposed that, she was unable to talk. He also stated that
incident took place in the kitchen where articles were scattered
and flour was made ready for preparing chapati.
Though above witness is cross examined by learned
APP, nothing adverse has been brought to doubt his version.
SUMMATION
18. Therefore, on taking total survey of above discussed
evidence and on reanalysis, it is emerging that, though deceased
suffered burns and though she gave dying declarations, it is
apparently a case of immolation. Though prosecution tried to set
up a case that accused persons, who are her uncle and aunt,
abetted the suicide by ill-treating her, there is no positive or legally
acceptable evidence that they harassed her to such extent that she
was forced to end up her life. Solitary instance of 18.12.2013 has
come in the entire evidence of prosecution. There is nothing to
-15- Cri.Appeal.641.2016
indicate abetment to commit suicide. Even otherwise, mere asking
deceased to ask her father to get partition done, by no stretch of
imagination can be said to be inducement or abetment to commit
suicide. Further, here, PW1 Sabiyabegam mother and DW1 Anwar
uncle categorically speak about partition already being done and
some litigation being pending. Therefore, here, there is nothing to
hold accused responsible for alleged episode of burns. There is
equal evidence about deceased suffering accidental burns while
cooking coming on record from none other than uncle, who is
brother of accused as well as father of deceased.
As none of the essential ingredients for attracting
charge under section 306 of IPC are available, it can be safely said
that prosecution has miserably failed to establish the charges.
19. Though vide Criminal Application No.4477 of 2016,
applicant State had prayed for grant of leave to file appeal, after
hearing full-fledged appeal and having discussed entire evidence,
there is no merit in the application so as to grant leave.
20. After hearing learned counsel for appellant and
learned APP as well as learned counsel for respondent nos.2 and 3
and on going through the judgment, no convincing ground is made
-16- Cri.Appeal.641.2016
out to interfere in the judgment passed by learned trial Judge,
which is upon proper appreciation, supported by reasons and law
on dying declaration as well as offence being clearly discussed.
Finding no merits in the appeal, I proceed to pass following order :-
ORDER
(i) Criminal Appeal stands dismissed.
(ii) Criminal Application No.4477 of 2016 filed by
applicant State stands rejected.
(ABHAY S. WAGHWASE, J.)
Tandale
