Lakhanlal Ramkishor Patalbanshi vs State Of … on 11 September, 2017

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

CRIMINAL APPEAL NO.653 OF 2002

Lakhanlal Ramkishor Patalbanshi,
Aged about 34 years,
R/o Mana, Tq. Murtijapur,
Dist. Akola. ……. APPELLANT

…V E R S U S…

The State of Maharashtra,
through P.S.O. Mana,
District Akola. ……. RESPONDENT
——————————————————————————————-
Ms. Rajasi A. Mardikar, Advocate h/f Shri A.S. Mardikar,
Senior Advocate for Appellant.
Shri A.V. Palshikar, APP for Respondent/State.
——————————————————————————————-

CORAM: ROHIT B. DEO, J.
DATE: th
11 SEPTEMBER, 2017.

ORAL JUDGMENT

1] Exception is taken to judgment dated 22.11.2002 in

Sessions Trial 223/1999 delivered by the 1 st Ad hoc Additional

Sessions Judge, Akola, by and under which, the appellant is

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

and for offence punishable under section 306 of the I.P.C. and is

sentenced to suffer rigorous imprisonment for one year and seven

years respectively.

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2] Heard Ms. Rajasi Mardikar, the learned counsel for

the appellant and Shri A.V. Palshikar, the learned Additional

Public Prosecutor for the respondent/State.

3] The genesis of the prosecution is an oral report

(Exh.16) dated 01.06.1999 lodged by Hariprasad Kashyap at

Police Station Mana, the gist of which is thus:-

Hariprasad Kashyap stated in the police report that the

marriage of his daughter Saroja and Lakhanlal Ramkishor

Patalbanshi was solemnized on 08.05.1998. Saroja visited her

parental house at Sukali on the occasion of Ashadhi, Nagpanchmi,

Raksha Bandhan, Diwali and Holi. Hariprasad Kashyap

(hereinafter referred to as “the informant”) further states that he

went to Mana to bring Saroja on the occasion of the marriage of

son of the informant. During the said period, Saroja conveyed to

the informant that Lakhanlal and his mother Fulkali are

demanding Rs.30,000/- “for the purpose of service” and a two

wheeler as well and that on her refusal Lakhanlal and his mother

Fulkali are harassing her. Informant further states that Lakhanlal

came to Sukali to escort Saroja back to her matrimonial home on

10.05.1999. Saroja told to the informant that due to harassment

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she would continue to stay in the parental home for one to one

and half month. The informant pacified Saroja and told her that

he would come to her matrimonial house after 15 days and would

settle all the problems. The informant further states that Saroja

had made disclosure about the demand to his other son Bhaiyalal

and to his friend Rajendra Gawande. The informant further states

that since Saroja was ill-treated by her husband Lakhanlal and his

mother Fulkali, she was driven to commit suicide. On the basis of

the said oral report First Information Report Exh.17 was

registered and offence punishable under section 498-A and 306 of

I.P.C. against Lakhanlal and Fulkali.

4] The completion of the investigation led to

charge-sheet being submitted in the Court of the Judicial

Magistrate First Class, Murtizapur who committed the case to the

Sessions Court. The Sessions Judge framed charge at Exh.12.

Both the accused pleaded not guilty and claimed to be tried.

The defence of the accused is of false implication. In the statement

recorded under section 313 of the Code of Criminal Procedure a

specific defence is taken that Saroja was suffering from

schizophrenia and was being treated by one Dr. Ramkumar Gujar.

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The said Doctor is examined as defence witness 1.

5] The learned Sessions Judge was pleased to acquit

Fulkali the mother of the appellant Lakhanlal (hereinafter referred

to as “the accused”) and convict the accused for offence

punishable under section 498-A and 306 of I.P.C.

6] Concededly, Saroja committed suicide on 31.05.1999

within less than one year and a month of the marriage. That the

death was suicidal was not challenged by the defence. The central

issue is whether Saroja was subjected to cruelty within the

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

whether the prosecution has proved beyond reasonable doubt that

Saroja was forced to commit suicide due to the ill-treatment to

which she was allegedly subjected.

7] The informant who is the father of Saroja is examined

as P.W.1. He states that there was no complaint or grievance from

Saroja when she came to her parental house on the occasion of

Nagpanchami, Diwali and Holi. P.W.1 states that it was on the

occasion of the marriage of Bhaiyalal that Saroja conveyed that

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the accused had asked her to demand Rs.30,000/- from her father

(P.W.1). Saroja conveyed that the accused has received interview

call.

8] P.W.1 states that since he did not have the financial

capacity he could not give Rs.30,000/- to Saroja. Saroja went to

her matrimonial house along with her husband unwillingly since

P.W.1 did not give Rs.30,000/-.

9] He states that Saroja committed suicide on

31.05.1999 by hanging herself. In the cross-examination, P.W.1

admits that the accused attended the marriage of his son. P.W.1

further admits that whenever Saroja used to come to her parental

house on the occasion of festivals accused used to accompany her

and Saroja used to return to her matrimonial home along with the

accused. P.W.1 further admits that the father of the accused is in

service and owns 8 to 10 acres of land. He further admits that he

did not inquire from the accused regarding the demand of

Rs.30,000/-. P.W.1 admits that the financial position of the

accused is sound. P.W.1 admits that he did not complaint to the

Police who were recording the panchnama of the dead body of

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Saroja about the ill-treatment. He admits that his wife and son

halted at Mana on the night of 31.05.1999. P.W.1 states that after

the funeral he went to Police Station Mana for lodging complaint

and was asked to come in the morning for lodging the report.

P.W.1 states that he lodged the oral report Exh.16 at Police

Station Mana on 01.06.1999 at 01:00 p.m. P.W.1 admits that due

to the death of Saroja and he and his relatives were unhappy and

that prior to lodging report he and his son deliberated and then

decided to lodge report. He denies the suggestion that there was

some misunderstanding between P.W.1 and the accused since

immediately after the death of Saroja, P.W.1 demanded the

articles given in marriage and the accused told him that the

articles will be returned after somedays, which annoyed P.W.1.

Certain omissions are brought on record. It is brought on record

that in the statement P.W.1 has not disclosed that Saroja conveyed

that the accused had asked her to demand Rs.30,000/- for his

employment and on that issue he was harassing her.

10] Bhaiyalal Kashyap the brother of deceased Saroja is

examined as P.W.2. His version as regards the demand is

substantially inconsistent with that of P.W.1. P.W.2 states that

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Saroja disclosed to him, after 4-5 months from marriage, that

accused had asked Saroja to bring from P.W.1 two wheeler and

Rs.30,000/-. Saroja told P.W.2 that accused needed Rs.30,000/-

to secure employment. P.W.2 states that when Saroja made the

disclosure his friend Rajendra Gawande was present. P.W.2

further states that according to Saroja she was harassed and

physically beaten by both the accused. P.W.2 states that after his

marriage on 07.05.1999 Saroja again conveyed to P.W.2 that the

accused had asked her to bring Rs.30,000/- and two wheeler.

P.W.2 states that even on this occasion his friend Rajendra

Gawande was present. P.W.2 claims that Saroja told him that both

the accused were harassing and beating her. P.W.2 states that on

12.05.1999 Saroja was weeping when she went to matrimonial

home with her husband. It is brought on record that the statement

that Saroja came to the residence of P.W.2 after 4 to 5 months of

the marriage and conveyed to P.W.2 that the accused 1 had asked

her to bring two wheeler and Rs.30,000/- from P.W.1 and that she

was harassed and beaten, is an omission. The statement that

P.W.3 Rajendra Gawande was present when Saroja made to

disclosure is also brought on record as an omission. The statement

that when Saroja came for the marriage, she told P.W.2 about the

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demand and the harassment in presence of Rajendra Gawande is

also an omission. The statement that when Saroja went to

matrimonial home on 12.05.1999, she was weeping is again an

omission.

11] Rajendra Gawande, who according to P.W.2 was

present on the two occasions on which Saroja disclosed the

demand and the ill-treatment is examined as P.W.3. The evidence

of Rajendra Gawande is absolutely vague and unreliable. P.W.3

states that after marriage Saroja used to come to his residence and

he was also visiting terms to parental home of Saroja. P.W.3 states

that Saroja told him that she was subjected to harassment from

accused 1 who had asked her to bring Rs.30,000/- from her

parents. The evidence of P.W.2 and P.W.3 is at variance. P.W.2

has made concerted attempt who introduce P.W.3, admittedly a

friend of P.W.2, as a person who co-incidentally or otherwise

happened to be present when the deceased Saroja made the

disclosure of the demand and harassment to her brother P.W.2.

The disclosures allegedly made by Saroja were two wheeler and

Rs.30,000/- and harassment and beating. However, P.W.3 only

vaguely states that Saroja told him that she was subjected to

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harassment from accused 1 and was asked to bring Rs.30,000/-

from her parents. P.W.3 is not supporting or corroborating the

version of P.W.2 that the disclosures were made by deceased

Saroja to her brother P.W.2 and P.W.3 happened to be present.

The versions of P.W.2 and P.W.3 are also discrepant on the

demand and the physical ill-treatment. P.W.3 makes no reference

to the two wheeler nor does he make any reference to the beating

or physical ill-treatment.

12] P.W.6, who was then attached to Police Station Mana

as Assistant Sub-Inspector has admitted in the cross-examination

that P.W.1 did not visit Police Station Mana in the night of

31.05.1999 to lodge the report. P.W.5 admits that P.W.1 came to

Police Station Mana for the first time at 01:00 p.m. on

01.06.1999. He admits that the statements of P.W.1, P.W.2 and

P.W.3 were recorded by P.S.I. Muley. He further admits that

during the course of investigation P.S.I. Muley had recorded the

statements of the neighbours of accused. The admission that

P.W.1 did not visit the Police Station prior to 01:00 p.m. on

01.06.1999 is of some relevance since both P.W.1 and P.W.2 have

deposed that they were at the Police Station for some hours in the

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night of 31.05.1999 and were asked by the Police to come on

01.06.1999 to lodge the report. The effort of the prosecution

witnesses was to demonstrate that the report was lodged with

promptitude and was not the outcome of ill advice or instigation

from the unhappy lot of the relatives of the deceased Saroja.

The Police Officer Mr. Muley who has substantially conducted the

investigation has not been examined for reasons not clear from

the record.

13] Ms. Rajasi Mardikar, the learned counsel for the

accused submits that the prosecution has not established offence

punishable either under section 498-A or 306 of I.P.C. much less

beyond reasonable doubt. Ms. Mardikar would submit, that the

evidence of the father P.W.1 is that Saroja conveyed to P.W.1 or

on after 07.05.1999 (marriage of P.W.2 was solemnized on

07.05.1999) that the accused demanded Rs.30,000/- and that the

accused had received interview call. The vague statement that

Saroja disclosed harassment and that accused was beating her, is

an omission. Ms. Mardikar would further urge, that the evidence

of P.W.2 must be discarded on the short ground that every

material statement is proved to be an omission. The learned

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counsel invites my attention to paragraph 4 and 5 of the

examination-in-chief to substantiate her contention that the

omissions relate to vital and significant facts and must be treated

as contradiction. The learned counsel would emphasis that the

failure of the prosecution to examine scribe of the 161 statement

has caused serious prejudice to the accused in as much as the

entire evidence of P.W.2 or at any rate substantial part of the

evidence is brought on record as an omission. The learned counsel

would then urge that the evidence of P.W.3 must be ignored and

discarded as he is obviously a planted witness. P.W.3, in any

event, has neither supported nor corroborated the evidence of

P.W.1 and P.W.2, is the submission.

14] Ms. Rajasi Mardikar invites my attention to the

judgment of the Hon’ble Supreme Court in Mangat Ram vs. State

of Haryana (2014) 12 SCC 595 and in particular to the following

observation to paragraphs 28, 29, 30, 31 and 33 which read thus:

28. We have already indicated that the trial court has
found that no offence under Section 304-B IPC has been
made out against the accused, but it convicted the
accused under Section 306 IPC, even though no charge
had been framed on that section against the accused.
The scope and ambit of Section 306 IPC has not been

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properly appreciated by the courts below. Section 306
IPC reads as under:

“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.”

Abetment of suicide is confined to the case of persons
who aid or abet the commission of the suicide. In the
matter of an offence under Section 306 IPC, abetment
must attract the definition thereof in Section 107 IPC.
Abetment is constituted by instigating a person to
commit an offence or engaging in a conspiracy to
commit, aid or intentional aiding a person to commit
it. It would be evident from a plain reading of Section
306 read with Section 107 IPC that, in order to make
out the offence of abetment or suicide, necessary proof
required is that the culprit is either instigating the
victim to commit suicide or has engaged himself in a
conspiracy with others for the commission of suicide, or
has intentionally aided by an act or illegal omission in
the commission of suicide.

29. In the instant case, of course, the wife died few
months after the marriage and the presumption under
Section 113-A of the Evidence Act could be raised.
Section 113-A of the Evidence Act reads as follows:

“113-A. Presumption as to abetment of suicide
by a married woman.– When the question is
whether the commission of a suicide by a woman had
been abetted by her husband or any relative of her
husband and it is shown that she had committed
suicide within a period of seven years from the date of
her marriage and that her husband or such relative of
her husband had subjected her to cruelty, the court may
presume, having regard to all the other circumstances
of the case, that such suicide had been abetted by her
husband or by such relative of her husband.”

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30. We are of the view that the mere fact that if a
married woman commits suicide within a period of
seven years of her marriage, the presumption under
Section 113-A of the Evidence Act would not
automatically apply. The legislative mandate is that
where a woman commits suicide within seven years of
her marriage and it is shown that her husband or any
relative of her husband has subjected her to cruelty, the
presumption as defined under Section 498-A IPC, may
attract, having regard to all other circumstances of the
case, that such suicide has been abetted by her husband
or by such relative of her husband. The term “the Court
may presume, having regard to all the other
circumstances of the case, that such suicide had been
abetted by her husband” would indicate that the
presumption is discretionary. So far as the present case
is concerned, we have already indicated that the
prosecution has not succeeded in showing that there
was a dowry demand, nor would the reasoning adopted
by the courts below would be sufficient enough to draw
a presumption so as to fall under Section 113-A of the
Evidence Act.

31. In this connection, we may refer to the
judgment of this Court in Hans Raj v. State of
Haryana, wherein this Court has examined the scope of
Section 113-A of the Evidence Act and Sections 306,
107, 498-A, etc. and held that, unlike Section 113-A of
the Evidence Act, a statutory presumption does not
arise by operation of law merely on the proof of
circumstances enumerated in Section 113-A of the
Evidence Act. This Court held that, under Section 113-A
of the Evidence Act, the prosecution has to first
establish that the woman concerned committed suicide
within a period of seven years from the date of her
marriage and that her husband has subject her to
cruelty. Even though those facts are established, the
court is not bound to presume that suicide has been
abetted by her husband. Section 113-A, therefore, gives
discretion to the court to raise such a presumption
having regard to all other circumstances of the case,

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which means that where the allegation is of cruelty, it
can consider the nature of cruelty to which the woman
was subjected, having regard to the meaning of the
word “cruelty” in Section 498-A IPC.

33. In Pinakin Mahipatray Rawal v. State of
Gujarat, this Court has examined the scope of Section
113-A of the Evidence Act, wherein this Court has
reiterated the legal position that the legislative
mandate of Section 113-A of the Evidence Act is that if
a woman commits suicide within seven years of her
marriage and it is shown that her husband or any
relative of her husband had subjected her to cruelty, as
per the presumption defined in Section 498-A IPC, the
court may presume, having regard to all other
circumstances of the case, that such suicide had been
abetted by the husband or such person. The court held
that, though a presumption could be drawn, the burden
of proof of showing that such an offence has been
committed by the accused under Section 498-A IPC is
on the prosecution. The court held that the burden is on
the prosecution to establish the fact that the deceased
committed suicide and the accused abetted the suicide.
In the instant case, there is no evidence to show
whether it was an accidental death or whether the
deceased had committed suicide.

Relying on the enunciation of Hon’ble Supreme Court, Ms.

Rajasi Mardikar contends that on the factual matrix the statutory

presumption under section 113-A is not available since the

prosecution has not established beyond reasonable doubt that the

deceased was subjected to cruelty.

Ms. Rajasi Mardikar also relies on the following observation

of the Hon’ble Supreme Court in Pinakin Mahipatray Rawal vs.

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State of Gujarat (2013) 10 SCC 48 and in particular to paragraph

26 which reads thus:

26. Section 113-A only deals with a presumption
which the court may draw in a particular fact situation
which may arise when necessary ingredients in order to
attract that provision are established. Criminal law
amendment and the rule of procedure was necessitated
so as to meet the social challenge of saving the married
woman from being ill-treated or forcing to commit
suicide by the husband or his relatives, demanding
dowry. Legislative mandate of the section is that when
a woman commits suicide within seven years of her
marriage and it is shown that her husband or any
relative of her husband had subjected her to cruelty as
per the terms defined in Section 498-A IPC, the court
may presume having regard to all other circumstances
of the case that such suicide has been abetted by the
husband or such person. Though a presumption could
be drawn, the burden of proof of showing that such an
offence has been committed by the accused under
Section 498-A IPC is on the prosecution. On facts, we
have already found that the prosecution has not
discharged the burden that A-1 had instigated,
conspired or intentionally aided so as to drive the wife
to commit suicide or that the alleged extramarital
affair was of such a degree which was likely to drive the
wife to commit suicide.

The learned counsel for the accused would further rely on

paragraph 16 of the Hon’ble Supreme Court judgment M. Mohan

vs. State Represented by the Deputy Superintendent of Police 2011

ALL MR (Cri) 1659 (S.C.) and in particular to paragraph 16 which

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reads thus:

16. The appellants contended that the learned
Single Judge, after examining the F.I.R., R.D.O. report
and Statements of the Witnesses under Section 161,
Cr.P.C. found that there were no allegations against the
appellants herein from the inception either by the
complainant or by the mother of the deceased and has
further held that there was no element of dowry related
harassment and/or any cruelty meted out to the
deceased by her sister-in-law or for that matter by any
of the accused. In view of the above categorical findings,
the learned Single Judge quashed the charges under
Sections 304-B and 498-A, I.P.C. However, the learned
Single Judge failed to appreciate that on the basis of
the material available on record and in the absence of
any allegation, if no offence is made out against the
appellants under Sections 304-B and 498-A, then the
appellants cannot be convicted under Section 306,
I.P.C. It is stated that to attract the provisions of
Section 306, I.P.C., the allegations as to the existence of
cruelty, dowry harassment and abetment to suicide are
all integrated. In absence of any allegations under
Sections 498-A and 304-B, I.P.C. provisions of Section
306, I.P.C. cannot be attracted.

The reliance on the enunciation of law in M. Mohan is to

buttress the submission that if offence punishable under section

498-A is not established, the accused cannot be convicted under

section 306 of I.P.C.

15] Ms. Rajasi Mardikar, the learned counsel for the

appellant also relies on the following observation in Sanju alias

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Sanjay Singh Sengar v. State of M.P. 2002 Cri. L.J. 2796 (SC) to

contend that even if the entire evidence is taken at face value, the

necessary mens rea is not proved and the prosecution has not

established that the accused instigated deceased Saroja to commit

suicide and relies in particular on the following observations in

paragraphs 7 to 13 which read thus:

7. Section 107, I.P.C. defines abetment to mean
that a person abets the doing of a thing if he firstly,
instigates any person to do that thing; or secondly,
engages with one or more other person or persons in
any conspiracy for the doing of that thing, 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 illegal
omission, the doing of that thing.

8. Before we advert further, at this stage we may
notice a few decisions of this Court, relevant for the
purpose of disposal of this case.

9. In Swamy Prahaladdas v. State of M.P. and
Anr., 1995 Supp. (3) SCC 438, the appellant was
charged for an offence under Section 306, I.P.C. on the
ground that the appellant during the quarrel is said to
have remarked the deceased ‘to go and die’. This Court
was of the view that mere words uttered by the accused
to the deceased ‘to go and die’ were not even prima facie
enough to instigate the deceased to commit suicide.

10. In Mahendra Singh v. State of M.P. 1995
Supp. (3) SCC 731, the appellant was charged for an
offence under Section 306, I.P.C. basically based upon
the dying declaration of the deceased, which reads as

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under:

“My mother-in-law and husband and sister-in-law
(husband’s elder brother’s wife) harassed me. They beat
me and abused me. My husband Mahendra wants to
marry a second time. He has illicit connections with my
sister-in-law. Because of those reasons and being
harassed I want to die by burning.”

11. This Court, considering the definition of
‘abetment’ under Section 107, I.P.C., found that the
charge and conviction of the appellant for an offence
under Section 306 is not sustainable merely on the
allegation of harassment to the deceased. This Court
further held that neither of the ingredients of abetment
are attracted on the statement of the deceased.

12. In Ramesh Kumar v. State of Chhattisgarh
(2001) 9 SCC 618, this Court while considering the
charge framed and the conviction for an offence under
Section 306, I.P.C. on the basis of dying declaration
recorded by an Executive Magistrate, in which she had
stated that previously there had been quarrel between
the deceased and her husband and on the day of
occurrence she had a quarrel with her husband who
had said that she could go wherever she wanted to go
and that thereafter she had poured kerosene on herself
and had set fire. Acquitting the accused this Court said:

“A word uttered in a fit of anger of emotion without
intending the consequences to actually follow cannot be
said to be instigation. If it transpires to the court that a
victim committing suicide was hypersensitive to
ordinary petulance, discord and difference in domestic
life quite common to the society to which the victim
belonged and such petulance discord and difference
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 for abetting
the offence of suicide should be found guilty.”

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13. Reverting to the facts of the case, both the
courts below have erroneously accepted the prosecution
story that the suicide by the deceased is the direct result
of the quarrel that had taken place on 25 th July, 1998
wherein it is alleged that the appellant has used abusive
language and had reportedly told the deceased ‘to go
and die’. For this, the courts relied on a statement of
Shashi Bhushan, brother of the deceased, made under
Section 161 Cr.P.C. when reportedly the deceased, after
coming back from the house of the appellant, told him
that the appellant had humiliated him and abused him
with filthy words. The statement of Shashi Bhushan,
recorded under Section 161 Cr.P.C. is annexed as
annexure P-3 to this appeal and going through the
statement, we find that he has not stated that the
deceased had told him that the appellant had asked
him ‘to go and die’. Even if we accept the prosecution
story that the appellant did tell the deceased ‘to go and
die’, that itself does not constitute the ingredient of
‘instigation’. The word ‘instigate’ denotes incitement or
urging to do some drastic or unadvisable action or to
stimulate or incite. Presence of mens rea, therefore, is
the necessary concomitant of instigation. It is common
knowledge that the words uttered in a quarrel or in a
spur of the moment cannot be taken to be uttered with
mens rea. It is in a fit of anger and emotional.
Secondly, the alleged abusive words, said to have been
told to the deceased were on 25th July, 1998 ensued by
quarrel. The deceased was found hanging on 27 th July,
1998. Assuming that the deceased had taken the
abusive language seriously, he had enough time in
between to think over and reflect and, therefore, it
cannot be said that the abusive language, which had
been used by the appellant on 25th July, 1998 drived
the deceased to commit suicide. Suicide by the deceased
on 27th July, 1998 is not proximate to the abusive
language uttered by the appellant on 25 th July, 1998.
The fact that the deceased committed suicide on 27th
July, 1998 would itself clearly pointed out that it is not
the direct result of the quarrel taken place on 25 th July,
1998 when it is alleged that the appellant had used the

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abusive language and also told the deceased to go and
die. This fact had escaped notice of the courts below.

16] Ms. Rajasi Mardikar, the learned counsel has also

drawn my attention to the judgment of the Hon’ble Supreme

Court in Rajesh Sharma ors. vs. State of U.P. Anr. delivered on

27.07.2017 and in particular to paragraph 14 which reads thus:

14. Section 498A was inserted in the statute with
the laudable object of punishing cruelty at the hands of
husband or his relatives against a wife particularly
when such cruelty had potential to result in suicide or
murder of a woman as mentioned in the State of
Objects and Reasons of the Act 46 of 1983. The
expression ‘cruelty’ in Section 498A covers conduct
which may drive the women to commit suicide or cause
grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful
demand. It is a matter of serious concern that large
number of cases continue to be filed under Section
498A alleging harassment of married women. We have
already referred to some of the statistics from the Crime
Records Bureau. This Court had earlier noticed the fact
that most of such complaints are filed in the heat of the
moment over trivial issues. Many of such complaints
are not bona fide. At the time of filing of the complaint,
implications and consequences are not visualized. At
times such complaints lead to uncalled for harassment
not only to the accused but also to the complainant.
Uncalled for arrest may ruin the chances of settlement.
This Court had earlier observed that a serious review of
the provision was warranted. The matter also appears
to have been considered by the Law Commission, the
Malimath Committee, the Committee on Petitions in

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the Rajya Sabha, the Home Ministry, which have been
referred to in the earlier part of the Judgment. The
abuse of the provision was also noted in the judgments
of this Court referred to earlier. Some High Courts have
issued directions to check such abuse. In Arnesh Kumar
(supra) this Court gave directions to safeguard uncalled
for arrests. Recommendation has also been made by the
Law Commission to make the offence compoundable.

My attention is drawn to the directions issued by the

Hon’ble Supreme Court in paragraph 19 of the judgment.

Ms. Rajasi Mardikar would submit that the case at hand is also a

glaring example of the misuse of the provisions of section 498-A of

I.P.C. which fell for consideration before the Hon’ble Supreme

Court and necessitated the directions incorporated in paragraph

19 of the judgment, which reads thus:-

19. Thus, after careful consideration of the whole
issue, we consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare
Committees be constituted by the District Legal Services
Authorities preferably comprising of three members.
The constitution and working of such committees may
be reviewed from time to time and at least once in a
year by the District and Sessions Judge of the district
who is also the Chairman of the District Legal Services
Authority.

(b) The Committees may be constituted out of para
legal volunteers/social workers/retired persons/wives of
working officers/other citizens who may be found
suitable and willing.

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(c) The Committee members will not be called as
witnesses.

(d) Every complaint under Section 498A received by the
police or the Magistrate be referred to and looked into
by such committee. Such committee may have
interaction with the parties personally or by means of
telephone or any other mode of communication
including electronic communication.

(e) Report of such committee be given to the Authority
by whom the complaint is referred to it latest within
one month from the date of receipt of complaint.

(f) The committee may give its brief report about the
factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest
should normally be effected.

(h) The report may be then considered by the
Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic
minimum training as may be considered necessary by
the Legal Services Authority from time to time.

(j) The Members of the committee may be given such
honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to
utilize the cost fund wherever considered necessary and
proper.

ii) Complaints under Section 498A and other connected
offences may be investigated only by a designated
Investigating Officer of the area. Such designations may
be made within one month from today. Such
designated officer may be required to undergo training
for such duration (not less than one week) as may be
considered appropriate. The training may be completed

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within four months from today;

iii) In cases where a settlement is reached, it will be open to
the District and Sessions Judge or any other senior
Judicial Officer nominated by him in the district to
dispose of the proceedings including closing of the
criminal case if dispute primarily relates to
matrimonial discord;

iv) If a bail application is filed with at least one clear day’s
notice to the Public Prosecutor/complainant, the same
may be decided as far as possible on the same day.
Recovery of disputed dowry items may not by itself be a
ground for denial of bail if maintenance or other rights
of wife/minor children can otherwise be protected.
Needless to say that in dealing with bail matters,
individual roles, prima facie truth of the allegations,
requirement of further arrest/custody and interest of
justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India
impounding of passports or issuance of Red Corner
Notice should not be a routine;

vi) It will be open to the District Judge or a designated
senior judicial officer nominated by the District Judge
to club all connected cases between the parties arising
out of matrimonial disputes so that a holistic view is
taken by the Court to whom all such cases are
entrusted; and

vii) Personal appearance of all family members and
particularly outstation members may not be required
and the trial court ought to grant exemption from
personal appearance or permit appearance by video
conferencing without adversely affecting progress of the
trial.

viii) These directions will not apply to the offences involving
tangible physical injuries or death.

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17] Shri A.V. Palshikar, the learned A.P.P. makes a

valiant attempt to support the impugned judgment. The learned

A.P.P. submits that the cruelty is established and the statutory

presumption under section 113-A can be drawn. The learned

A.P.P. concedes that the statutory presumption under section

113-A enables the Court to draw a presumption as to abatement

of suicide only if it is proved that the husband or any relative had

subjected the woman to cruelty. The learned A.P.P. would submit

that the evidence of P.W.1, P.W.2 and P.W.3 is sufficient to

establish that the accused subjected deceased Saroja to cruelty

and in view of the statutory presumption under section 113-A, the

conviction is unexceptionable.

18] Section 498-A reads 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

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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.

19] I am inclined to agree with Ms. Rajasi Mardikar, the

learned counsel for the appellant that the evidence on record is

grossly insufficient to record a finding that the accused subjected

the deceased Saroja to ill-treatment within the meaning of

explanation (a) and (b) of section 498-A of I.P.C. The learned

counsel is right in contending that P.W.3 Rajendra Gawande

appears to have been introduced only to enthuse or lend

credibility to the evidence of P.W.1 and P.W.2 who are related

witnesses and is projected as an independent witness to the

alleged disclosures by deceased Saroja to overcome the rule of

prudence that the testimony of related witnesses must be tested

with some caution. That apart, the evidence of P.W.3 is implicitly

unreliable and does not take the case of the prosecution any

further. The evidence of P.W.2 who is the brother of the deceased

must be discarded as the evidence is marred to many

contradictions and inter se discrepancies and inconsistencies with

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the evidence of P.W.1. The evidence of P.W.2 is not at all

confidence inspiring.

20] The evidence of father of P.W.1 is to the effect that

Rs.30,000/- was demanded to secure employment. P.W.1 has not

stated the particulars of harassment and indeed, to that extent I

must hold the evidence as unreliable. P.W.1 admits that the

financial position of the accused is sound, he further admits that

the father of the accused owns 8 to 10 acres land and that the

accused was an agriculturist since prior to marriage with Saroja.

P.W.1 admits that on all festival occasions Saroja was

accompanied by accused who also attended the marriage of

P.W.2. P.W.1 further admits that he did not make any inquiry

from the accused as regards the demand. I am afraid, the

conviction cannot rest on the evidence of P.W.1 which is vague,

lacking in material particulars and to certain extent rendered

suspect due to the contradictions brought on record. Be it noted,

that the version of P.W.1 and P.W.2 that they visited the Police

Station Mana in the night of 31.05.1999 and were there for some

hours is not supported by P.W.5 who has deposed that P.W.1

came to the Police Station for the first time at 01:00 p.m. on

01.06.1999. The possibility, that the pain and anguish due to the

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traumatic death of Saroja and the perceived grievance that the

accused may be responsible, prompted P.W.1 to falsely implicate

the accused, is a real possibility.

21] In my opinion, the prosecution has failed to prove

beyond reasonable doubt that deceased Saroja was subjected to

cruelty envisaged explanation (a) and (b) of section 498-A of

I.P.C. It is axiomatic, that since cruelty is not established, charge

under section 306 of I.P.C. must necessarily fell.

22] I am not persuaded to uphold the judgment

impugned and I set aside the same.

23] The accused is acquitted of offence punishable under

section 498-A and 306 of I.P.C.

24] The bail bond stands discharged.

25] The appeal is allowed. The fine amount paid by the

accused, if any, shall be refunded to him.

JUDGE
NSN

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