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Judgment
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.
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.
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.
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.
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.
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.
Mr. N.R. Tekade, learned counsel appearing on behalf of the appellant, submitted that the testimony of the main witness in the present case i.e.
PW1 Nikhil was rendered unreliable and that it was liable to be discarded. For this purpose, the learned counsel emphasized on admission given in
cross-examination by the said witness that before deposing in the Court, he along with his maternal uncle PW5 had gone to the office of the A.P.P.
and that the A.P.P. had read over his statement to him and he was told by the APP as to the manner in which deposition was to be made in the Court.
It was submitted that the said admission demonstrated that PW1 was a tutored witness and that his testimony was liable to be discarded. It was
submitted that once the evidence of the said witness PW1 stood discarded, there was no evidence on record to show that such an incident had ever
taken place on 15.08.2003 when the said Sharda committed suicide. It was further submitted that the trial Court had already acquitted the appellant for
offence under Section 498-A of the IPC and that, therefore, there was no evidence on record to sustain the conviction imposed by the trial Court. The
learned counsel placed reliance on judgment of the Division Bench of this Court in the case of Suresh Purushottam Astankar .vs. State of
Maharashtra â€" 2015 (3) Mh.L.J. (Cri) 424. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Swamy
Prahaladdas .vs. State of M.P. and another â€" 1995 Supp (3) Supreme Court Cases 438 to contend that if there are certain words uttered in the heat
of moment between quarreling persons and one of them commits suicide , the other cannot be held liable under Section 306 of the IPC.
On the other hand Ms. Shamshi Haider, learned Additional Public Prosecutor, submitted that evidence of prosecution witnesses other than PW1
Nikhil, was sufficient to sustain the conviction of the appellant under Section 306 of the IPC. It was submitted that the conduct of the appellant in
failing to prevent the deceased Sharda from consuming poison and thereafter in failing to take her to the hospital immediately, demonstrated that the
conviction imposed upon him was sustainable. It was submitted that there was evidence on record to show that the deceased had made statement in
respect of the said incident dated 15.08.2003 to other prosecution witnesses, which could be relied upon to sustain the conviction.
Heard counsel for the parties. In the present case, the prosecution story as regards demand of money and harassment in connection thereof
inflicted by the appellant on the deceased Sharda, was disbelieved by the trial Court itself, as a result of which he stood acquitted for offence
punishable under Section 498-A of the IPC. Therefore, the evidence of the prosecution witnesses concerning harassment and unlawful demand
cannot be looked into since the evidence of the prosecution witnesses becomes relevant only in respect of the incident that occurred on 15.08.2003,
leading to Sharda committing suicide. In this regard, evidence of only PW1 Nikhil is relevant, because he claimed to have been present in the house
when the quarrel took place between his parents, leading to his mother (deceased) consuming poison.
Although the said witness has described the incident in detail in his examination-in-chief and it is in consonance with the prosecution case, in cross-
examination the said witness has admitted as follows:-
“It is true that today I have come here with along with my maternal uncle and grand mother. It is true that I myself and my maternal uncle had
gone to office of A.P.P. but it is not true that we were taken there by police. It is true that today A.P.P. read over my statement to me, and I was told
by A.P.P. how to depose before court. At the time of reading out my statement to me, my maternal uncle Laxman, my maternal grandmother, another
maternal uncle and two other boys of my locality were present.â€
The aforesaid admission made by PW1 Nikhil shows that he was a tutored witness.
It has been held by Division Bench of this Court in the case of Suresh Purushottam Astankar .vs. State of Maharashtra (supra) as follows:-
 “30. In the cross-examination, Sharyu (PW-1) has admitted as under:
“It is true that, today, I have read my statement. It is true that police had given the same to me. It is true that the said police Officer is sitting in the
Court hall.â€
In the backdrop of the aforesaid evidence, it will be useful to refer reported decision by the learned Single Judge of this Court (R.C. Chavan, J)
reported in 2006(2) Mh.L.J. (Cri) 1210 : [2007 ALL MR (Cri) 352] Sharad s/o Namdeorao Shirbhate vs. State of Maharashtra.
In para 10 of the said reported Judgment, the learned Single Judge found that Pundlik (PW-1) has admitted that the police has read over his
statement to him and also told him to tender the evidence as per his statement. The learned Single Judge has observed thus:
“There would indeed be nothing wrong in the witness refreshing his memory, but that ought to be done before the Court and not outside the Court.
In order to test the veracity of a witness, he would be required to recollect the incident out of his own memory and should he falter on some material
aspect, he could be allowed to refresh his memory with reference to the contemporaneous records of the incident created by the police. It would not
be permissible for such witness to stealthily refresh his memory before entering the Court and deposing about the entire evidence giving minute details
as if he was reeling them out from his memory. Therefore, the objection to the reliability of evidence of PW-2 Prabhakar taken by learned counsel for
the appellant is valid.†(emphasis is supplied by us).
We approve the dictum of the learned Single Judge in that behalfâ€
The said position of law, when applied to the facts of the present case, shows that PW1 Nikhil refreshed his memory before entering the Court
and, therefore, his entire testimony was rendered unreliable and it was liable to be discarded. The trial Court failed to appreciate this crucial aspect of
the present case. The entire reasoning for conviction of the appellant in the impugned judgment and order was based on the evidence of the said PW1
Nikhil. But the said position of law, makes it clear that the evidence of PW1 Nikhil could not have been looked into by the trial Court and it ought to
have been discarded. This is apart from the fact that there were certain omissions brought out in the cross-examination of the said witness pertaining
to the nature of violence inflicted on the deceased by the appellant at the time of the incident in question.
Since the evidence of PW1 Nikhil stands wiped out, perusal of evidence of the other prosecution witnesses is necessary to examine whether the
conviction imposed by the trial court could be sustained. A perusal of the evidence of PW3 Kasabai, i.e. mother of the deceased, shows that she
claimed that deceased had told her in the hospital about the incident in question and how the appellant had twisted her hand on the said date. The
evidence of the complainant PW5 Laxman shows that he also claimed that the deceased had told him on 16.08.2003 at about 3.30 a.m., upon
regaining consciousness, that she was beaten by the appellant and he twisted her hand on the date of the incident and that the appellant had asked her
to take poison. But, in crossexamination, the said witness PW5 has stated that he had not informed the Police about the words that the deceased had
uttered in the hospital. The evidence of the two investigating officers PW6 and PW7 also shows that the said claim made that some words were
uttered by the deceased in the hospital, are not supported by material on record.
Apart from this, even according to the prosecution case, a neighbour, one Mr. Gedam, had reached the spot after the deceased had consumed
poison and that he along with PW1 Nikhil had taken the deceased to the hospital. The said Mr. Gedam was never examined as a witness by the
prosecution. This further indicates that other than the evidence of PW1 Nikhil, there was no other witness to support the prosecution case.
Another relevant aspect of the present case is that the incident occurred on 15.08.2003 in the morning at about 9 a.m., while the oral report leading
to registration of FIR was submitted before the Police on 19.08.2003 at about 9 p.m. Therefore, there was delay of more than 4 days in registration of
FIR in the present case. Although the complainant PW5 has sought to give an explanation for the delay by stating that his mother i.e. PW3 was ill
from 16.08.2003 to 19.08.2003, but there is no explanation from the side of the prosecution as to why no other person from the family of the deceased
came forward to raise a grievance before the Police. Apart from this, it is evident from the record that a report under Section 174 of the Cr.P.C. had
been recorded immediately on the date of the incident and that the investigating officer PW6 had started recording statements of witnesses. If the
case of the prosecution was indeed genuine, the grievance raised by the complainant PW5 would have come to the knowledge of the Police
immediately and there was no reason why registration of FIR would have waited for more than four days. This aspect of the present case also
creates doubt about the allegations made against the appellant. In this backdrop, only because there was nothing to show that the appellant had not
immediately taken the deceased to hospital upon her consuming poison, he cannot be convicted for having committed offence under Section 306 of the
IPC.
The submission made on behalf of the appellant that during a quarrel in the heat of moment between two persons, if one of them takes the
extreme step of consuming poison, the other person cannot be held guilty under Section 306 of the IPC, need not be gone into because in the present
case, there is lack of evidence to show that any such quarrel or incident in fact had taken place on 15.08.2003. Therefore, the said position of law
could not be relied upon in the facts of the present case to examine whether the conduct of the appellant was such that on the date of the incident he
had indeed driven the deceased to commit suicide.
In the light of the above, it is obvious that the impugned judgment and order passed by the trial Court cannot be sustained. Accordingly, this appeal
is allowed, the impugned judgment and order is set aside and the appellant is acquitted of the offence under Section 306 of the IPC. Since the
appellant was on bail, the bail bonds shall stand cancelled.