Judgment 1 apeal18.2005.odt

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

CRIMINAL APPEAL NO. 18/2005

The State of Maharashtra,
Through PSO, Morshi,
Tq. Morshi, Dist. Amravati
…. APPELLANT

// VERSUS //

1] Naresh @ Narendra Vishnuji Raut,
Aged about 23 years,

2] Vishnuji Mahadeorao Raut,
Aged about 50 years,

3] Sharad Vishnuji Raut,
Aged 25 years,

4] Sau. Bebi Vishnuji Raut,
Aged about 48 years,

5] Sau. Varsha Sharad Raut,
Aged about 25 years,

6] Sau. Shalu Dilip Lahane,
Aged about 27 years,

R/o Hiwarkhed, Tq. Morshi,
Dist. Amravati
…. RESPONDENT(S)
_
Ms. N.P. Mehta, APP for the appellant/State
Shri P.S. Khubalkar, Advocate for the respondents
_
CORAM : Z.A.HAQ, J.

DATED : 25/05/2018

Date of Reserving Judgment:- 24/05/2018
Date of Pronouncing Judgment:- 25/05/2018

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ORAL JUDGMENT :

1] Heard Ms. N.P. Mehta, APP for the appellant/State and Shri P.S.

Khubalkar, Advocate for the respondents/accused.

2] The appellant/State of Maharashtra has filed this appeal to

challenge the judgment passed by the learned Ad-hoc Assistant Sessions

Judge acquitting the respondents/accused of the charge of the offences

punishable under Section 498A, Section 306 read with Section 34 of the

Indian Penal Code.

3] The case of the prosecution is:-

The marriage between the respondent/accused no. 1 and

Rukhma (deceased) was solemnized on 13/04/2002. On 09/05/2002, she

had been to village Ekdara, her native town to attend marriage in the family

of one Haribhau Chaudhari. Rukhma had met her mother at the place where

function of marriage took place and that time, Rukhma told her mother that

the respondents/accused were ill-treating her on trifle matters and she was

beaten by the respondents/accused. On 12/05/2002, Rukhma consumed

poisonous substance and committed suicide. On 13/05/2002, Pundlikrao

Natthuji Gudadhe (father of Rukhma) lodged complaint at Police Station,

Morshi alleging that Rukhma committed suicide due to ill-treatment and

cruelty meted out to her by all the respondents/accused.

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Initially, the case of accidental death was registered at the Police

Station, Morshi however, after the report was lodged by Pundlikrao Natthuji

Gudadhe, offence vide Crime No. 79/2002 was registered. The investigation

was undertaken by Police Sub-Inspector Nandu Ramaji Mankari and after

completing the investigation and the necessary formalities, charge-sheet was

filed in the Court of J.M.F.C., Morshi. As offence punishable under Section

306 is exclusively triable by the Court of Sessions, the case was committed to

the Sessions Court. The learned Sessions Judge framed charges for the

offences punishable under Section 498A, Section 306 read with Section 34 of

the Indian Penal Code and explained them to the respondents/accused. The

respondents/accused did not accept the guilt and claimed to be tried. After

conducting the trial, the learned Sessions Judge recorded that the

prosecution has failed to prove its case and acquitted the

respondents/accused.

4] Rukhma died within one month of her marriage with the

respondent/accused no. 1. Undisputedly, Rukhma committed suicide and the

incident occurred at her matrimonial house.

Sulabha (wife of Pundlikrao Natthuji Gudadhe and mother of

Rukhma) is examined as PW-3. Sulabha has stated that the

respondents/accused used to beat Rukhma on trifle matters. Sulabha stated

that Rukham had told her when she met at the marriage function of

Haribhau’s son that milk was spilled over by her and because of it her

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mother-in-law and sister-in-law told her that if she causes such loss they will

kill her.

5] Column no. 17 of the memorandum of post-mortem

examination of Rukhma (Exh. 59) shows that contused abrasion 1/4 inch x

1/8 inch was noticed on outer pinna of left ear and blood clots was also

found. In the evidence of Sulabha, it has come on record that she saw that

blood was oozing from the ear of Rukhma.

I am conscious that Sulabha, being mother of Rukhma is

interested witness and her evidence will have to be examined with

circumspection. The entry in column no. 17 of the memorandum of post-

mortem examination of Rukhma corroborates the evidence of Sulabha about

bleeding injury to Rukhma on her ear.

6] The defence of the respondents/accused is that Rukhma had

extra-marital affair and therefore she was not interested in cohabiting with

respondent/accused no. 1. The defence of the respondents/accused is

reflected from suggestion given to Pundlikrao Natthuji Gudadhe (PW-1) in

his cross-examination (see para no. 6 of the notes of evidence of Pundlikrao

Natthuji Gudadhe). The suggestion is to the effect that deceased had already

conceived from Tryambak Charape with whom she had an affair prior to her

marriage with the respondent/accused no. 1. Further, the suggestion given to

Pundlikrao Natthuji Gudadhe was that Rukhma consumed excess dose of

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some pills to terminate the pregnancy.

Though the respondents/accused tried to raise the defence that

death of Rukhma was caused because of over dose of pills which were

consumed to terminate the pregnancy, the memorandum of post-mortem of

Rukhma does not support the claim of the respondents/accused. The

evidence on record does not show that Rukhma was pregnant at the time of

the incident. The evidence on record does not show that the pills consumed

by Rukhma were those which are taken for termination of pregnancy.

If the facts of the case and the evidence which has come on

record are examined keeping in view the provisions of Section 113A of the

Evidence Act, and the fact that death of Rukhma took place in her

matrimonial house, it has to be held that Rukhma committed suicide because

of ill-treatment and cruelty meted out to her.

7] The question arises as to who ill-treated Rukhma and who

subjected to her cruelty ? I find that there is no specific evidence on record

on the basis on which it can be said that the prosecution has proved its case

against the respondent/accused nos. 2 to 6. Only a statement in the evidence

of Sulabha that Rukhma had told her that respondent/accused no. 4

(mother-in-law of Rukhma) was beating Rukhma is not sufficient to hold that

the respondent/accused no. 4 is guilty of offence punishable under Section

498A and Section 306 of the Indian Penal Code. Similarly, the evidence on

record is not sufficient to hold that the respondent/accused nos. 2, 3, 5 and 6

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are guilty of offence punishable under Section 498A and Section 306 of the

Indian Penal Code.

8] Pundlikrao Natthuji Gudadhe (PW-1) has stated in his evidence

that Rukhma had told him that the respondent/accused no. 1 used to beat

Rukhma under the influence of alcohol. The memorandum of post-mortem

examination of Rukhma shows that Rukhma had bleeding injury over her left

ear and blood clots were found. In view of this evidence, coupled with the

presumption under Section 113A of the Evidence Act, in my view, it has to

held that accused no. 1/Naresh @ Narendra Vishnuji Raut subjected

Rukhma to cruelty and ill-treated her which drove Rukhma to commit

suicide. Hence, it has to be held that the respondent/accused no. 1 is liable

for conviction for the offence punishable under Section 498A of the Indian

Penal Code. I find that the prosecution has not been able to prove that

respondent/accused no. 1 is liable for conviction for the offence punishable

under Section 306 of the Indian Penal Code.

9] The learned advocate for the respondents/accused submitted

that the judgment passed by the Sessions Court acquitting the

respondents/accused should not be reversed as it cannot be said that the

judgment is perverse or some relevant evidence is not considered by the

Sessions Court. To support the submission, reliance is placed on the judgment

given in the case of Arulvelu and another vs. State represented by the Public

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Prosecutor and another reported in (2009) 10 SCC at page 206
.

It is further submitted that only subjecting deceased to cruelty is

not sufficient to hold that the respondents/accused are guilty of committing

offence punishable under Section 498A of the Indian Penal Code, and the

prosecution has to prove that deceased was subjected to cruelty of such

nature which drove her to commit suicide. To support the submission,

reliance is placed on the judgment given in the case of Pinakin Mahipatray

Rawal vs. State of Gujarat reported in (2013) 10 SCC at page 48
.

The submission made by the learned advocate for the

respondents/accused relying on the judgment given in the case of Arulvelu

and another (supra) cannot be accepted as in the present case the learned

Sessions Judge has appreciated the evidence without adverting to the

provisions of Section 113A of the Evidence Act, and this is the material defect

which has resulted in the erroneous judgment.

The submission made by the learned advocate for the

respondents/accused relying on the judgment given in the case of Pinakin

Mahipatray Rawal (supra) also cannot be accepted as in the present case,

Rukhma committed suicide within one month of marriage and the incident

had taken place at her matrimonial house. Furthermore, the defence raised

by the respondents/accused attempting to tarnish the character of Rukhma

after her death speaks volumes.

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10] The learned APP has rightly relied on the judgment given in the

case of State
of West Bengal vs. Orilal Jaiswal and another
reported in

(1994) 1 SCC at page 73 to argue that there is no absolute standard of

proof in a criminal trial, and the question whether the charges framed

against the respondents/accused have been proved beyond reasonable

doubts depend on the facts and circumstances of the case and the quality of

the evidence adduced in the case. In this judgment , the Hon’ble Supreme

Court has laid down that doubt must be of a reasonable man and the

standard adopted must be a standard by a reasonable and just man for

coming to the conclusion. It is laid down that reasonableness of the doubt

must be commensurate with the nature of the offence.

11] In the present case, I find that the prosecution has brought

sufficient evidence on record to hold that the respondent/accused no. 1 is

guilty of offence punishable under Section 498A of the Indian Penal Code

and is liable for conviction for the offence punishable under Section 498A of

the Indian Penal Code. However, the prosecution has not been able to prove

that the respondent/accused no. 1 is liable for conviction under Section 306

of the Indian Penal Code.

At the time of pronouncement of the judgment, the learned

advocate for the respondent/accused no.1 is heard on the point of

sentence.

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12] The learned advocate for the respondent/accused no. 1

submitted that the respondent/accused no. 1 is not involved in any other

crime/offence, is now married and is having two children and is maintaining

his family by doing labour work. He prayed that considering the facts of the

case, lenient view may be taken and instead of sentencing him to suffer

imprisonment, fine may be imposed.

13] Considering the facts of the case, I feel it appropriate to

sentence the respondent/accused no. 1-Naresh @ Narendra Vishnuji Raut to

undergo simple imprisonment for one year and pay fine of Rs. 10,000/- (Rs.

Ten Thousand), and in default of payment of fine, the respondent/accused

no. 1 shall undergo simple imprisonment of further period of one month.

14] At this stage, the learned advocate for the respondent/accused

no. 1 has requested for suspension of order of sentence. It is submitted that

as the respondent/accused no. 1 has the right to file appeal to challenge this

judgment, the order of sentence be suspended. The order of sentence is

suspended for period of two months.

15] The respondent/accused no. 1 shall furnish fresh P.R. Bond for

Rs. 25,000/- and two solvent sureties/securities for the equal amount to the

satisfaction of the Sessions Court. Out of the two solvent sureties/securities,

one shall be furnished by family member of the respondent/accused no. 1.

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16] The appeal is partly allowed in the above terms. In the

circumstances, the parties to bear their own costs.

CRIMINAL APPLICATION (APPA) NO. 486/2018

In view of disposal of appeal, this application praying for

cancellation of warrant has become infructous, it is disposed accordingly. No

costs.

JUDGE

Ansari

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