Sanju S/O Atmaram Patil vs State Of Maharashtra on 14 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.271 OF 2002

Sanju s/o Atmaram Patil,
Aged about 38 years,
R/o Mata Nagar Chowk,
Ward No.24, Chandrapur. ……. APPELLANT

…V E R S U S…

State of Maharashtra,
through Police Station Officer,
City Police Station,
Chandrapur. ……. RESPONDENT
——————————————————————————————-
Shri R.P. Joshi, Advocate for Appellant.
Shri A.V. Palshikar, APP for Respondent.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 29.08.2017
DATE OF PRONOUNCING THE JUDGMENT : 14.09.2017

1] Challenge is to the judgment and order dated

26.04.2002 in Sessions Case 97/1994 by the Additional Sessions

Judge, Chandrapur, by and under which, appellant is convicted

for the offence punishable under section 498-A of I.P.C. and is

sentenced to suffer rigorous imprisonment for one year and to pay

fine of Rs.500/- and is further convicted for the offence

punishable under section 306 of I.P.C. and is sentenced to suffer

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rigorous imprisonment for two years and to pay fine of Rs.1000/-.

The appellant is acquitted of offence punishable under section

304-B of I.P.C.

2] The case of the prosecution, as is unfolded during the

trial, is that the marriage of accused and the deceased Roopa was

solemnized sometime in 1991. Roopa committed suicide

on 04.04.1994. The appellant along with accused 2 and 3 (father

and mother of the accused) subjected the deceased Roopa to

cruelty within the meaning of explanation (a) and (b) of section

498-A of I.P.C. and thus committed offence punishable under

section 304-B, 306 and 498-A read with section 34 of I.P.C.

The father of the accused died during the pendency of the trial

and the mother is acquitted of all charges.

3] The prosecution case is that the accused subjected the

deceased Roopa to ill-treatment with a view to coerce Roopa to

fulfill unlawful demand of cot and Scooter and the cruel treatment

which was meted out was sufficient to drive deceased Roopa to

commit suicide. The prosecution examined four witnesses to bring

home the charge. P.W.1 Chandrashekhar Shridhar Moon is the

brother of the deceased and the informant, P.W.2 Tulsabai

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Shridhar Moon is the mother of the deceased, P.W.3 Meenabai

Chandrabhan Khadse is the sister of the deceased and P.W.4

Pramila Krishnaji Sakdeo is family friend of the deceased.

The spot panchnama is exhibited on admission (Exh.39).

4] The submission of the learned counsel for the accused

Shri R.P. Joshi is two fold. He would submit, firstly, that the

prosecution has failed to prove that the death is suicidal.

The contention is that accidental death is not ruled out.

The learned counsel contends that the mother of the deceased

(P.W.2) has admitted that the deceased used to leave the house

early in the morning to collect the cow dung. He invites my

attention to the spot panchnama which records that a steel

container is found near the dead body. The learned counsel for

the accused would submit that since the possibility of accidental

death cannot be excluded, the finding that the deceased

committed suicide is unsustainable.

5] The second submission of the learned counsel for the

accused is that the prosecution has miserably failed to prove that

the deceased was subjected to cruelty. The learned counsel would

urge that the evidence of P.W.1, P.W.2, P.W.3 and P.W.4 is not

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only sketchy and vague, there are too many inter se discrepancies

and contradictions in the evidence to inspire confidence.

The learned counsel contends that the evidence of P.W.2 in

particular is replete with statements which are proved to be

omissions. The omissions are material and significant and partake

the character of contradiction. The learned counsel would submit

that it would be unsafe to be a conviction on evidence which is

not consistent and therefore, not confidence inspiring.

6] The learned counsel would also submit, relying on the

judgment of the Hon’ble Supreme Court in Bhairaon Singh vs.

State of Madhya Pradesh, 2010 ALL SCR 213, that if the death of

Roopa is held not to be suicidal, then the entire evidence which is

based on what is narrated by the deceased to her family members,

is rendered inadmissible. The learned counsel would urge that

cause of death or the circumstances leading to death is not in

issue in trial for charge under section 498-A of I.P.C. The learned

counsel would rely on the following observations in Bhairaon

Singh vs. State of Madhya Pradesh, 2010 ALL SCR 213:

“4. The legal position relating to the admissibility
of evidence under section 32(1) has come up for
consideration before this court time and again. It is not

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necessary to multiply the authorities in this regard as
reference to a three judge Bench decision of this court in
Sharad Birdhichand Sarda Vs. State of Maharashtra,
(1984)4 SCC 116:[2009 ALL SCR(O.C.C.) 281], will
suffice. Regarding the application of rule under section
32(1) Evidence Act, Fazal Ali, J. culled out the legal
position as follows:

“(1) Section 32 is an exception to the rule of
hearsay and makes admissible the statement of a
person who dies, whether the death is a homicide or a
suicide, provided the statement relates to the cause of
death, or exhibits circumstances leading to the death.
In this respect as indicated above, the Indian Evidence
Act, in view of the peculiar condition of our society
annd the diverse nature and character of our people,
has thought it necessary to widen the sphere of Section
32 to avoid injustice”.

“(2)The test of proximity cannot be too literally
construed and practically reduced to a cut and dried
formula of universal application so as to be confined in
a straitjacket. Distance of time would depend or vary
with the circumstances of each case. For instance,
where death is a logical culmination of a continuous
drama long in process and is, as it were, a finale of the
story, the statement regarding each step directly
connected with the end of the drama would be
admissible because the entire statement would have to
be read as an organic whole and not torn from the
context. Sometimes statements relevant to or furnishing
an immediate motive may also be admissible as being a
part of the transaction of death. It is manifest that all
these statements come to light only after the death of
the deceased who speaks from death. For instance,
where the death takes place within a very short time of
the marriage or the distance of time is not spread over
more than 3-4 months the statement may be admissible
under Section 32”.

(3) The second part of clause (1) of Section 32 is yet
another exception to the rule that in criminal law the
evidence of a person who was not being subjected to or

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given an opportunity of being cross examined by the
accused, would be valueless because the place of cross
examination is taken by the solemnity and sanctity and
sanctity of oath for the simple reason that a person on
the verge of death is not likely to make a false
statement unless there is strong evidence to show that
the statement was secured either by prompting or
tutoring.

(4) It may be important to note that Section 32 does
not speak of homicide alone but includes suicide also,
hence all the circumstances which may be relevant to
prove a case of homicide would be equally relevant to
prove a case of suicide.

(5) Where the main evidence consists of statements
and letters written by the deceased which are directly
connected with or related to her death and which reveal
a tell-tale story, the said statement would clearly fall
within the four corners of Section 32 and, therefore,
admissible. The distance of time alone in such cases
would not make the statement irrelevant.”

5. Varadarajan, J. on the other hand referred to
the legal position stated by Woodroffe and Amir Ali in
their Law of Evidence,(fourteenth edition) and Ratanlal
Dhirajlal in their Law of Evidence (1982 Reprint). This
is how A. Varadarajan, J. dealt with the admissibility
of evidence under Section 32(1):

“….The position of law relating to the admissibility
of evidence under Section 32(1) is well settled. It is,
therefore, not necessary to refer in detail to the
decisions of this Court or of the Privy Council or our
High Courts. It would suffice to extract what the
learned authors Woodroffe and Amir Ali have stated in
their Law of Evidence, Fourteenth Edn. and Ratanlal
and Dhirajlal in their Law of Evidence (1982 Reprint).
Those propositions are based mostly on decisions of
courts for which reference has been given at the end.
They are these: Woodroffe and Amir Ali’s Law of
Evidence, Fourteenth Edn.:

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“Page 937: Hearsay is excluded because it is
considered not sufficiently trustworthy. It is rejected
because it lacks the sanction of the test applied to
admissible evidence, namely, the oath and cross-
examination. But where there are special circumstances
which give a guarantee of trustworthiness to the
testimony, it is admitted even though it comes from a
second-hand source.

Page 941: What is relevant and admissible under
clause (1) of this section (Section 32) is the statement
actually made by the deceased as to the cause of his
death or of the circumstances of the transaction which
resulted in his death.

Page 945-946: A statement must be as to the cause
of the declarant’s death or as to any of the
circumstances of the transaction which resulted in his
death i.e. the cause and circumstances of the death and
not previous or subsequent transaction, such
independent transactions being excluded as not falling
within the principle of necessity on which such evidence
is received. When a person is not proved to have died as
a result of injuries received in the incident in question,
his statement cannot be said to be a statement as to the
cause of his death or as to any of the circumstances
which resulted in his death. (AIR 1964 SC 900.) Where
there is nothing to show that the injury to which a
statement in the dying declaration relates was the cause
of the injured person’s death or that the circumstances
under which it was received resulted in his death, the
statement is not admissible under this clause. (ILR
1901 25 Bom.45.)

Page 947: Circumstances of the transaction
resulting in his death: This clause refers to two kinds of
statements: (i) when the statement is made by a person
as to the cause of his death, or (ii) when the statement
is made by a person as to any of the circumstances of
the transaction which resulted in his death. The words
`resulted in his death’ do not mean `caused his death’.
The expression `any of the circumstances of the
transaction which resulted in his death’ is wider in

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scope than the expression `the cause of his death’. The
declarant need not actually have been apprehending
death. (AIR 1964 MP 30.)

Page 947: The expression `circumstances of the
transaction’ occurring in Section 32, clause (1) has
been a source of perplexity to courts faced with the
question as to what matters are admissible within the
meaning of the expression. The decision of Their
Lordships of the Privy Council in Pakala Narayana
Swami v. Emperor (AIR 1939 PC 47) sets the limits of
the matters that could legitimately be brought within
the purview of that expression. Lord Atkin, who
delivered the judgment of the Board, has, however,
made it abundantly clear that, except in special
circumstances no circumstance could be a circumstance
of the transaction if it is not confined to either the time
actually occupied by the transaction resulting in death
or the scene in which the actual transaction resulting in
death took place. The special circumstance permitted to
transgress the time factor is, for example, a case of
prolonged poisoning, while the special circumstance
permitted to transgress the distance factor is, for
example, a case of decoying with intent to murder….
But the circumstances must be circumstances of the
transaction and they must have some proximate
relation to the actual occurrence.

Page 948: `Circumstances of the transaction’ is a
phrase no doubt that conveys some limitations. It is not
as broad as the analogous use in `circumstantial
evidence’ which includes the evidence of all relevant
factors. It is on the other hand narrower than `res
gestae’. Circumstances must have some proximate
relation to the actual occurrence, though, as for
instance, in the case of prolonged poisoning they may
be related to dates at a considerable distance from the
date of actual fatal dose.

Page 948: The Supreme Court in the case of Shiv
Kumar v. State of U.P.{1966 Cri.App.R (SC) 281} has
made similar observations that the circumstances must
have some proximate relation to the actual occurrence,

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and that general expressions indicating fear or
suspicion, whether of a particular individual or
otherwise and not directly to the occasion of death will
not be admissible.

Page 949: The clause does not permit the reception
in evidence of all such statements of a dead person as
may relate to matters having a bearing howsoever
remote on the cause or the circumstances of his death.
It is confined to only such statements as relate to
matters so closely connected with the events which
resulted in his death that may be said to relate to
circumstances of the transaction which resulted in his
death. [(1939) 66 IA 66.] `Circumstances of the
transaction which resulted in his death’ means only
such facts or series of facts which have a direct or
organic relation to death. Hence statement made by the
deceased long before the incident of murder is not
admissible.[1974 Cri LJ 1200 (MP).] Law of Evidence
by Ratanlal and Dhirajlal (1982 Reprint)

Page 94: Circumstances of the transaction: General
expressions indicating fear or suspicion whether of a
particular individual or otherwise and not directly
related to the occasion of the death are not admissible.
[(1939) 66 IA 66] (18 Part 234.)

Page 95: Circumstances must have some proximate
relation to the actual occurrence and must be of the
transaction which resulted in the death of the
declarant. The condition of the admissibility of the
evidence is that the cause of the declarant’s death comes
into question. It is not necessary that the statement
must be made after the transaction has taken place or
that the person making it must be near death or that
the `circumstance’ can only include the acts done when
and where the death was caused….

Dying declarations are admissible under this
clause.”

“10. The only evidence to bring home charge under
Section 498A, IPC, is that of PW-4 and PW-5. In their

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deposition PW-4 and PW-5 stated that their sister told
them that accused was torturing her as he wanted that
her brothers arrange a job for him or the house at Ganj
Basoda is given to him or a cash of Rs.1 lac is given to
enable him to do some business. They deposed that as
and when their sister come to their house, she would
tell them that accused used to insert cloth in her mouth
and give beatings for dowry. The trial court as well as
the High Court relied on the evidence of PW-4 and
PW-5 and held that charge under Section 498A, IPC,
against the accused was proved. Apart from the
statement attributed to the deceased, none of the
witnesses had spoken anything which they had seen
directly insofar as torture and harassment to Ranjana
Rani @ Raj Kumari was concerned”.

“11. The moot question is: whether the statements
attributed to the deceased could be used as evidence for
entering upon a finding that the accused subjected
Ranjana Rani @ Raj Kumari to cruelty as contemplated
under Section 498A, IPC. In our considered view, the
evidence of PW-4 and PW-5 about what the deceased
Ranjana Rani @ Raj Kumari had told them against the
accused about the torture and harassment is
inadmissible under Section 32(1) of the Evidence Act
and such evidence cannot be looked into for any
purpose. Except Section 32(1) of the Indian Evidence
Act, there is no other provision under which the
statement of a dead person can be looked into in
evidence”.

The statement of a dead person is admissible in law
if the statement is as to the cause of death or as to any
of the circumstance of the transactions which resulted
in her death, in a case in which the cause of death
comes into question. What has been deposed by PW-4
and PW-5 has no connection with any circumstance of
transaction which resulted in her death. The death of
Smt. Ranjana Rani @ Raj Kumari was neither
homicidal nor suicidal; it was accidental. Since for an
offence under Section 498A simpliciter, the question of
death is not and cannot be an issue for consideration,

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we are afraid the evidence of PW-4 and PW-5 is hardly
an evidence in law to establish such offence. In that
situation Section 32(1) of the Evidence Act does not get
attracted”.

“12. We are fortified in our view by the decision of
this Court in Inder Pal vs. State of M.P2. (2001) 10
SCC 736, wherein this Court considered the matter
thus:

“4. We will consider at first the contention as to
whether there is any evidence against the appellant
which can be used against him for entering upon a
finding that he subjected Damyanti to cruelty as
contemplated in Section 498-A IPC. PW 1 father of the
deceased and PW 8 mother of the deceased have stated
that Damyanti had complained to them of her plight in
the house of her husband and particularly about the
conduct of the appellant. PW 4 sister of the deceased
and PW 5 a relative of the deceased have also spoken
more or less on the same line. Exhibit P-7 and Exhibit
P-8 are letters said to have been written by Damyanti.
In those two letters reference has been made to her life
in the house of her in-laws and in one of the letters she
said that her husband had subjected her to beating.

5. Apart from the statement attributed to the
deceased none of the witnesses had spoken of anything
which they had seen directly. The question is whether
the statements attributed to the deceased could be used
as evidence in this case including the contents of
Exhibits P-7 and P-8 (letters).

6. Before deciding that question we have to point out
that the High Court came to a conclusion that the
allegation that she committed suicide was not
substantiated. A dying declaration was recorded by the
Executive Magistrate in which the deceased had stated
that she got burns accidentally from a stove. If that be
so, death could not be the result of either any
harassment or any cruelty which she was subjected to.
In this context we may point out that the State has not
challenged the finding of the High Court that death of

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Damyanti was not due to commission of suicide”.

7. Unless the statement of a dead person would fall
within the purview of Section 32(1) of the Indian
Evidence Act there is no other provision under which
the same can be admitted in evidence. In order to make
the statement of a dead person admissible in law
(written or verbal) the statement must be as to the
cause of her death or as to any of the circumstances of
the transactions which resulted in her death, in cases in
which the cause of death comes into question. By no
stretch of imagination can the statements of Damyanti
contained in Exhibit P-7 or Exhibit P-8 and those
quoted by the witnesses be connected with any
circumstance of the transaction which resulted in her
death. Even that apart, when we are dealing with an
offence under Section 498-A IPC disjuncted from the
offence under Section 306, IPC the question of her
death is not an issue for consideration and on that
premise also Section 32(1) of the Evidence Act will
stand at bay so far as these materials are concerned.”

7] Per contra, Shri A.V. Palshikar the learned A.P.P.

would submit that the prosecution has proved the offence under

section 498-A and section 306 of I.P.C. beyond reasonable doubt.

Shri Palshikar, the learned A.P.P. submits that the judgment

impugned does not suffer from any infirmity, on facts or in law.

8] I am inclined to accept the submission of the learned

counsel for the accused, that the possibility of accidental death

cannot be totally excluded. The evidence would suggest that the

deceased used to go out to collect cow dung in the morning.

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The spot panchnama records the presence of steel container near

the body of the deceased. The prosecution has failed to prove, to

which aspect I shall advert in some detail in the judgment, that

the alleged cruelty was of such nature and extent as would compel

or push Roopa to end her life. On a holistic appreciation of the

evidence on record it would be very hazardous to totally exclude

the possibility of the death being accidental and not suicidal.

9] Shri R.P. Joshi the learned counsel for the accused is

right in contending that if the death is not suicidal or homicidal

and is accidental, then the only charge which survives is of an

offence punishable under section 498-A of I.P.C. and the entire

evidence which is founded on the narration by the deceased

Roopa to the witnesses is hearsay and cannot be treated as

admissible under section 32 (1), since the cause of death or the

circumstances leading to death is not an issue in trial for offence

under section 498-A of I.P.C. The learned counsel would further

contend that even if the evidence is assumed to be admissible, the

evidence is grossly insufficient to bring home charge under section

498-A of I.P.C.

10] It would be useful to consider the scope and ambit of

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section 498-A of I.P.C. which read thus:

498-A. Husband or relative of husband of a
woman subjecting her to cruelty.– Whoever, being
the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.

Explanation.– For the purpose of this section,
“cruelty” means

(a) any wilful conduct which is of such a nature as
is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet such
demand.

11] The ingredients of section 498-A of I.P.C. are

articulated in Girdhar Shankar Tawade Vs. State of Maharashtra

(2002) 5 SCC 177, thus:

“3. The basic purport of the statutory provision is
to avoid “cruelty” which stands defined by attributing a
specific statutory meaning attached thereto as noticed
hereinbefore. Two specific instances have been taken
note of in order to ascribe a meaning to the word
“cruelty” as is expressed by the legislature: whereas
Explanation (a) involves three specific situations viz.

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(I) to drive the woman to commit suicide or (ii) to
cause grave injury or (iii) danger to life, limb or health,
both mental and physical, and thus involving a physical
torture or atrocity, in Explanation (b) there is absence
of physical injury but the legislature thought it fit to
include only coercive harassment which obviously as
the legislative intent expressed is equally heinous to
match the physical injury; whereas one is patent, the
other one is latent but equally serious in terms of the
provisions of the statute since the same would also
embrace the attributes of “cruelty” in terms of Section
498-A.”

“17. As regards the core issue as to whether
charges under Sections 306 and 498-A of the Indian
Penal Code are independent of each other and acquittal
of one does not lead to acquittal on the other, as
noticed earlier, there appears to be a long catena of
cases in affirmation thereto and as such further
dilation is not necessary neither are we inclined to do
so, but in order to justify a conviction under the later
provision there must be available on record some
material and cogent evidence. Presently, we have on
record two inconsistent versions of the brother and the
cousin, as such no credence can be attributed thereupon

– the documentary evidence (namely, those three
letters), in our view, falls short of the requirement of
the statute: even on an assumption of the fact that
there is no contradiction in the oral testimony available
on record, the cousin goes to the unfortunate girl’s in
laws’ place and requests the husband to treat her well –
at best some torture and a request to treat her well.
This by itself would not bring home the charge under
Section 498-A. Demand for dowry has not seen the
light of day”.

12] Cruelty for the purpose of section 498-A of I..P.C is

statutorily defined. Cruelty which may be constitute a matrimonial

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offence may not necessarily be the cruelty envisaged under

explanation (a)(b) to section 498-A of I.P.C. The evidence on

record must be tested on the anvil of the statutory definition of

cruelty and the articulation of the Hon’ble Supreme Court on the

scope and ambit of section 498-A of I.P.C.

P.W.1 Chandrashekhar states that accused used to beat

Roopa and all the accused used to tell Roopa that her brother

(P.W.1) did not give anything in marriage. P.W.1 states that he

came to know of the said ill-treatment from Roopa during her visit

to parental house. P.W.1 does not depose as to any particular

demand much less cot, two-wheeler and the like. During the cross-

examination P.W.1 admits that both accused and his late father

(accused 2) were serving in Western Coalfields Ltd. and have a

large house of their own. He admits that the deceased Roopa and

accused resided separately from the parents of the accused in a

rental house at Bengali Camp for 2 to 4 months. P.W.1 admits that

during that time both the deceased and the accused used to visit

Roopa’s parental house. P.W.1 further admits that Roopa and

accused started residing at the house of the father of the accused

at the behest of the father of the accused (deceased accused 2).

P.W.2 Tulsabai states that after marriage Roopa started residing

with the accused at Chandrapur. The residence of the accused,

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who was residing jointly, was in the same locality and the houses

of P.W.2 and the accused were separated only by road.

13] P.W.2 states that Roopa was treated well for six

months or thereabout. She states that after six months, accused

started making demand of two-wheeler and used to beat Roopa by

belt, fists and kick. She states that the deceased used to narrate

the ill-treatment to P.W.2 as and when the deceased Roopa visited

parental house. In paragraph 2 of the examination-in-chief, P.W.2

states that she lodged report with City Police Station, Chandrapur.

This report is however, not produced on record. In paragraph 3 of

the examination-in-chief, P.W.2 states that when accused stayed

at the residence of P.W.2, post delivery, he used to beat Roopa

and had taken the new born baby with him to his house.

She states that thereafter Roopa went to stay with the accused.

P.W.2 states that the accused poured kerosene on the person of

Roopa and according to P.W.2 she came to know about the

incident from the landlady of the accused. P.W.2 further states

that the accused was asking Roopa to jump into a well or set

herself afire. The testimony of P.W.2 is not at all reliable or

trustworthy. The statement that the accused used to beat Roopa

by belt, fists and kick blows is an omission. The statement that

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according to Roopa she was not allowed to take her son with her

is also an omission. The statement that the accused sought divorce

is again an omission. The statement that accused threatened

Roopa that she should not return home or else she will have to

face serious consequence is an omission. The statement that the

accused took the newly born child from the custody of Roopa is

again an omission. The statement that accused poured kerosene

oil on the person of the deceased is also an omission. For reasons

inexplicable, neither the Investigating Officer nor scribe of the 161

statement is examined by the prosecution. P.W.3 is Meenabai the

sister of the deceased who speaks of ill-treatment for meting the

demand of Scooter and other articles.

14] P.W.4 Pramila who claims to be a family friend, states

that the accused was giving ill-treatment to deceased Roopa which

Roopa used to disclose to P.W.4. She states that Roopa used to say

that the accused beat and harassed her. P.W.4 further states that

according to Roopa the accused are demanding dowry and used to

threaten that Roopa will be killed. The witness is not in a position

to disclose the date, time or month of the alleged conversation

with Roopa. The statement that Roopa told P.W.4 that the

accused were making demand of dowry and threatening to kill

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apeal271.02.J.odt 19

Roopa is an omission to the extent of demand of dowry.

15] The learned Sessions Judge has rightly recorded a

finding that the prosecution has not proved demand of dowry.

It would be necessary to consider the evidence in order to

ascertain whether cruelty within the meaning of explanation (a)

or (b) of section 498-A of I.P.C. is established. P.W.1 does not

make any reference to any specific demand other than making a

general assertion that the deceased used to be beaten up by the

accused since P.W.1 did not give anything in marriage.

The evidence of P.W.1 is too sketchy, vague and omnibus to assist

the prosecution. P.W.2 on the other hand has clearly engaged in

exaggeration and improvement. Her evidence is absolutely

inconsistent with the evidence of other witnesses. The report to

which P.W.2 makes a reference is not produced on record. Most of

the allegations are proved to be omission and the omissions are

material and significant. The prosecution has not examined the

scribe of 161 statements or Investigating Officer and it is for this

reason that the omissions are not proved. It is axiomatic, that the

accused has been seriously prejudiced by the failure of the

prosecution to examine the scribe of 161 statements of the I.O.

P.W.3 Meenabai states that Roopa was treated well for initial

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apeal271.02.J.odt 20

period of 2 to 3 months and then was ill-treated by the accused

who demanded the Scooter and other articles. The solitary

statement in the examination-in-chief does not take the case of the

prosecution any further. P.W.3 gives no details of the demand nor

of the alleged ill-treatment.

16] The evidence of P.W.4 is not confidence inspiring.

Neither P.W.1, brother nor P.W.3 (sister) speak about the accused

giving life threat to Roopa. The reference to such life threat is also

absent in the evidence of P.W.2 (mother), although P.W.2 states

that the accused used to tell Roopa to commit suicide. It appears

to be absolutely unnatural that Roopa would not make such a

disclosure to her family members. The prosecution has not

brought on record any special relationship or bond between P.W.4

and Roopa. P.W.4 is a friend of the family of the deceased.

However, there is absolutely no reason or any circumstance

demonstrated on record as to why the deceased would firstly,

narrate or talk about her personal problems with P.W.4 and then

why would the deceased reveal that the accused threatened to kill

her only to P.W.4 and not to her brother, mother or sister. P.W.4

is certainly not a reliable witness.

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apeal271.02.J.odt 21

17] The prosecution has not established cruelty within the

meaning of explanation (a) of section 498-A of I.P.C. The evidence

is not sufficient to establish cruelty of such nature or extent that

Roopa will be compelled or driven to take the extreme step.

The prosecution has further failed to establish cruelty within the

meaning of explanation (b) of section 498-A of I.P.C.

The evidence on the aspect of ill-treatment or harassment in order

to coerce the relatives of the deceased to meet an unlawful

demand is grossly inadequate. I, therefore, hold that the

prosecution has not established that the deceased Roopa was

subjected to cruelty within the meaning of explanation (a) and (b)

of section 498-A of I.P.C.

18] In conclusion, the prosecution has not conclusively

excluded the possibility of accidental death. That apart, the

evidence on record is not sufficient to bring home charge either

under section 306 of I.P.C. or under section 498-A of I.P.C.

19] I would allow the appeal and set aside the judgment

impugned.

20] The accused is acquitted of offence punishable under

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apeal271.02.J.odt 22

section 498-A of I.P.C.

21] The bail bond stands discharged.

22] The fine amount paid, if any, by the accused shall be

refunded to him.

JUDGE

NSN

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