Cri.Appeal 273/01 @ Revn.156/01 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 273/2001
WITH
CRIMINAL REVISION NO.156/2001 (SUO MOTU)
Satishraj s/o Gautam Ramteke,
Aged about 32 years,
R/o Ballarsha, P.S. Ballarsha,
District : Chandrapur. APPELLANT
…..VERSUS…..
The State of Maharashtra,
through P.S.O. Ballarsha,
District Chandrapur. RESPONDENT
Mr. R.M. Daga, counsel for the appellant.
Mr. Vishal Gangane, Additional Public Prosecutor for the respondent.
CORAM :MANISH PITALE, J.
DATE : 6 TH JUNE, 2018.
ORAL JUDGMENT
By this appeal, the appellant has challenged the judgment
and order dated 14.09.2001 passed by the Court of 3 rd Additional
Sessions Judge, Chandrapur (Trial Court) in Sessions Case No.51 of
1996 whereby, the appellant has been convicted under Sections 306
and 498-A of the Indian Penal Code (I.P.C.) being sentenced to suffer
rigorous imprisonment for a period of three years and one year
respectively.
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2. The prosecution case in brief is that the appellant got married
to the deceased Mamta @ Maya in July-1993 and that after marriage,
they started residing at Durgapur, where the appellant was posted as a
clerk. Thereafter, the appellant was transferred to Ballarsha where he
shifted along with his wife (deceased). In October-1995, the deceased
gave birth to a son and thereafter, her mother came to stay with the
appellant and the deceased at Ballarsha.
3. The incident in question in the present case took place in the
morning on 04.12.1995 when the mother of the deceased claimed to have
heard shouts of the deceased from her room where she had allegedly
poured kerosene on herself and set herself ablaze. Since the room was
bolted from inside, the fire could not be extinguished in time and the
deceased suffered 100% burns and died instantly in the room. One
Ambadas Besekar (PW2), a neighbour, saw the aforesaid incident and
gave information to the police station at Ballarsha, on the basis of which a
report of accidental death was recorded under Section 174 of the Code of
Criminal Procedure (Cr.P.C.). On the basis of the said report,
investigation was initiated and spot panchnama as well as seizure memo
were prepared.
4. The maternal uncle and the aunt of the deceased being PW3
and PW1 respectively, claimed to have reached Ballarsha upon getting
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information about the incident at about 9.00 p.m. On 06.12.1995, they
submitted a report to the Police Inspector at Ballarsha in which they
claimed that the deceased was driven to commit suicide because of the
harassment meted out by the appellant on her. It was claimed that due to
the nature of the appellant and his behaviour towards the deceased, she
was unhappy, leading to her suicide. There was no immediate
registration of offence in pursuance of the aforesaid report. It was on
17.01.1996 that first information report (F.I.R.) was registered in the
police station at Ballarsha, wherein the Police Sub-Inspector R.J. Sharma
(PW-8 Investigating Officer) was the informant. In the said F.I.R., it was
stated that the appellant had scolded and misbehaved with the deceased
on a trifle matter and that he had suspected her fidelity, leading to the
deceased committing suicide and that therefore, offence was registered
against the appellant under Sections 498-A and 306 of I.P.C.
5. On the basis of the registration of the aforesaid offence,
investigation was completed and charge was framed on 28.11.2000
against the appellant for having committed the aforesaid offences. In
order to prove its case, the prosecution recorded evidence of eight
witnesses. PW1-Sujata Meshram was the maternal aunt of the deceased,
PW-2 Ambadas Besekar was the neighbour who informed the police about
the incident, PW3-Bhaurao Meshram was the maternal uncle of the
deceased, PW4-Pratibha Jambhulkar was a lady who claimed to have
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corresponded with the appellant for the proposal of marriage, PW5-
Sulochana Khobragade was the mother of the deceased, PW6-Devendra
Dhande and PW7-Vijay Gowardhan were the panch witnesses on the
seizure and spot panchnama and PW8-Raj Narayan Sharma was the
Investigating Officer. On the basis of the investigation, documentary
evidence was placed on record and it was claimed by the prosecution
that the case had been proved beyond reasonable doubt against the
appellant.
6. The statement of the appellant (accused) under Section 313
of Cr.P.C. was recorded by the trial Court. There was no defence witness
examined on behalf of the appellant.
7. On the basis of the aforesaid oral and documentary evidence
and material on record, by the impugned judgment and order dated
14.09.2001, the trial Court found that the guilt of the appellant had been
proved and consequently he was convicted and sentenced in the aforesaid
manner. The trial Court found that there was sufficient evidence on
record to conclude that the deceased had suffered harassment at the
hands of the appellant and further that his action of corresponding with
PW4 and her father for proposed marriage, even during subsistence of
marriage with the deceased, proved to be the major factor which drove
the deceased to commit suicide. The trial Court also found that since the
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death of the appellant’s wife had occurred within seven years of the
marriage, the presumption under Section 113-A of the Evidence Act, 1872
operated against the appellant and that therefore, in the totality of
circumstances, the prosecution had indeed proved its case.
8. Mr.R.M. Daga, Advocate, learned counsel appearing on behalf
of the appellant, submitted that the impugned judgment and order passed
by the trial Court was unsustainable because it was not based on proper
appreciation of the evidence and material on record. According to the
learned counsel, there was no evidence on record to prove that the
appellant had harassed his wife, driving her to commit suicide. The
alleged incidents of harassment were all stated for the first time by the
prosecution witnesses, only after the incident and there was no material
to show that during the two and half years of marriage, the appellant had
indulged in any activity that would amount to causing grave harassment
to his wife, leading to her suicide. It was contended that the theory about
the deceased being driven to suicide due to proposed marriage between
the appellant and PW4, was baseless because there was no such
statement in the evidence of any of the material prosecution witnesses
including the mother and the maternal uncle or the maternal aunt of the
deceased to show that there was indeed such a proposal in the pipeline
about which the deceased had knowledge. It was pointed out that
although PW4 had proved letters written by her and her father to the
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appellant, the letters allegedly written by the appellant were never placed
on record and mere reference to them was not sufficient. In respect of
the presumption under Section 113-A of the Evidence Act, 1872, it was
submitted by the learned counsel that such a presumption would arise
only after the prosecution had successfully placed on record the evidence
to show that the appellant had inflicted cruelty on the deceased as
contemplated under Section 498-A of the I.P.C. In the absence of
sufficient material placed on record by the prosecution, the aforesaid
presumption would not operate against the appellant. The learned
counsel relied upon the judgments of the Hon’ble Supreme Court in the
case of Atmaram s/o Raysingh Rathod Versus State of Maharashtra
[(2013) 12 SCC 286], Mangat Ram Versus State of Haryana [(2014) 12
SCC 595] as well as the judgment of this Court in the case of The State of
Maharashtra Versus Rajkumar Chandrakant Kavade Others (2018 All
MR (Cri) 1458).
9. Per contra, Learned Additional Public Prosecutor Mr.Vishal
Gangane appearing on behalf of the State, submitted that there was
sufficient evidence and material on record to show that the appellant had
indeed harassed his wife and that she was driven to commit suicide. It
was submitted that the trial Court had correctly appreciated the material
on record, particularly the fact that the appellant corresponded with PW4
and her father in respect of proposal of marriage even during the
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subsistence of marriage between him and the deceased. The trial Court
had taken into consideration all such factors in the correct perspective
while passing the impugned judgment and order. It was submitted that
no interference was warranted in the conviction and sentence imposed by
the trial Court on the appellant.
10. Before embarking upon the analysis of evidence and material
on record in the present case, it would be appropriate to first deal with
the aspect of presumption under Section 113-A of the Evidence Act, 1872,
that has been employed by the trial Court against the appellant in the
present case. Since the death of the wife of the appellant had occurred
within seven years of marriage, the aforesaid presumption had been
pressed into operation. Although such a presumption is rebuttable, the
onus in such cases would certainly shift on the accused and it would be
necessary to examine as to whether such a presumption could be properly
raised against the appellant in the facts and circumstances of the present
case.
Section 113-A of the Evidence Act, 1872 reads as follows:-
“113-A. Presumption as to abetment of suicide by a
married woman.– When the question is whether the
commission of 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
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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.
Explanation.- For the purposes of this section, “cruelty” shall
have the same meaning as in section 498-A of the Indian Penal
Code (45 of 1860).”
11. In this context, Section 498-A of the I.P.C. also becomes
relevant, which reads as follows:-
“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 purposes 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.”
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12. It is relevant that Section 113-A of the Evidence Act, 1872
specifically states that for the purpose of this section “cruelty” shall have
the same meaning as under Section 498-A of the I.P.C. A perusal of the
above quoted Section 498-A of the I.P.C. shows that the word “cruelty”
has been defined in the explanation appended to the said provision. In
this context, Courts have taken into account both the above quoted
provisions to analyze as to in what circumstances, the aforesaid
presumption can be raised against the accused. In its judgment in the
case of Atmaram Versus State (Supra), the Hon’ble Supreme Court in
this context has held as follows:-
“10. A reading of Section 498-A IPC would show that if
the husband or relative of the husband of a woman subjected
such woman to cruelty, they shall be liable for the punishment
mentioned herein. Moreover, the Explanation to Section 498-A
IPC defines ‘cruelty’ for the purpose of Section 498-A IPC, to
mean (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. A reading of Section 113-A
of the Evidence Act, 1872 will show that for the purposes of
Section 113-A of the Evidence Act, 1872, ‘cruelty shall have the
same meaning as in Section 498-A IPC. Hence, to convict a
husband or any relative of the husband of a woman or to draw::: Uploaded on – 12/06/2018 13/06/2018 00:28:57 :::
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by her husband or any relative of her husband in case of suicide
committed by a woman within a period of seven years from the
date of her marriage, there must first be evidence to establish
that such husband or the relative of her husband committed
cruelty of the nature, described in clauses (a) or (b) of the
Explanation to Section 498-A IPC.”
13. In the case of Mangat Ram Versus State of Haryana (Supra),
the Hon’ble Supreme Court has held as follows:-
“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.”
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14. This Court in the case of The State of Maharashtra Versus
Rajkumar (Supra), in this context, has held as follows:-
“5. I have perused the record and proceedings including
deposition of witnesses and documentary evidence adduced by
the prosecution. In the case in hand, Ujwala Kavade, a married
woman, undisputedly died within twenty months of her
marriage with accused no.1 Rajkumar Kavade. Section 113-A
of the Evidence Act deals with presumption as to abetment of
suicide by a married woman. The presumption under Section
113A of the Evidence Act can be drawn when it is proved that
suicide has been committed by a married woman within seven
years of her marriage and that, her husband and his relatives
had subjected her to cruelty. However, such presumption is
required to be raised by having regard to all other attending
circumstances of the case. This is a rebuttal presumption. It is
required to be raised only when the prosecution establishes its
initial onus of proving cruelty to a married woman by accused
persons as defined by Explanation to Section 498A of the Indian
Penal Code. To establish cruel treatment to a married woman,
the prosecution is enjoined to establish that married woman
was subjected to such a treatment, so as to drive her to commit
suicide or to cause grave injury or danger to her life, limb or
health. Such conduct is required to be wilful. Similarly,
harassment of a married woman with a view for coercing her or
any person related to her to meet any unlawful demand for
property or valuable security also amounts to cruelty as defined
by Explanation to Section 498A of the Indian Penal Code. Let
us, therefore, examine whether evidence of the prosecution meets
this requirement.”
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15. The aforesaid position of law clearly demonstrates that
it is for the prosecution to first prove that there is sufficient evidence
on record to conclude that the accused had indeed inflicted
“cruelty” upon the deceased wife and that it is only thereafter that
the presumption under Section 113-A of the Evidence Act, 1872
would come into operation. It is in this backdrop that the evidence
in the present case will have to be analyzed to examine the correctness
or otherwise of the impugned judgment and order passed by the trial
Court.
16. A perusal of the evidence of PW1 (maternal aunt of
the deceased), PW3 (maternal uncle of the deceased) and PW5
(mother of the deceased) would show that all of them have referred
to the appellant having inflicted harassment upon the deceased. It is
claimed by PW1 that the deceased used to tell her about the fact that the
appellant suspected her character and that he used to pick up quarrels
with her. It is also claimed by the said witness that the deceased had told
her about the beatings inflicted by the appellant on the deceased. But, in
the cross-examination the said witness has clearly admitted that all such
details about the alleged harassment and beating were not stated by her
in her statement to the police. Apart from this, she had also admitted
that the appellant never demanded dowry.
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17. The evidence of PW3 (maternal uncle of the deceased) is very
brief, wherein he merely states that the deceased was subjected to
harassment by the appellant and that he used to pick up quarrels with
her. But, in the cross-examination he has admitted that he had never
been to the place of the deceased after her marriage and he further
admits that the accused was admitted in hospital for treatment with burn
injuries after the incident dated 04.12.1995. A perusal of the evidence of
PW5 (mother of the deceased) shows that she had gone to stay with her
daughter after delivery of child and that she was staying with her at the
time of the incident. This witness states that in the morning on the date
of the incident, the appellant refused to take tea from the deceased and
taunted her, picking up a quarrel with her. She claimed that she
intervened between the two and thereafter went away for washing
clothes and that thereafter she heard shouts of her daughter and on
reaching the room she found that her daughter had burnt herself to
death. In the cross-examination, the said witness admitted that the
appellant never demanded any dowry. The said witness also admitted
that all her statements about harassment, quarrelsome nature of the
appellant and denial of food to her daughter, etc. were not mentioned in
her statement to the police. All these omissions were put to her in cross-
examination.
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18. A perusal of the evidence of PW4 shows that her father had
found the name of the appellant in the marriage bureau, as a result of
which, he had corresponded with the appellant for proposal of marriage
with the said witness. It was claimed that letters were written by her and
her father vide Exhibits 32, 33 and 34, without the knowledge that the
appellant was already married. This witness has referred to and proved
letters dated 04.07.1994 and 18.06.1994 written by her father to the
appellant and letter dated 24.11.1994 sent by her to the appellant. In
these letters, there is reference made to the letters allegedly sent by the
appellant in response but, none of the said letters have been brought on
record by the prosecution.
19. Witnesses at PW6 and PW7 are the panch witnesses, whose
evidence does not turn the case beyond a point and it is the evidence of
PW8-Investigating Officer, which is relevant. A perusal of the cross-
examination of this witness shows that all the omissions pointed out in
the evidence of the witnesses at PW1, PW3 and PW5 have been put to this
witness and it is clear that all such omissions have been proved.
20. The nature of the aforesaid evidence on record shows that
although the aforesaid witnesses, particularly PW1, PW3 and PW5 have
claimed that the appellant used to harass the deceased, which drove her
to commit suicide, there is no material evidence to support the aforesaid
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claim of the said witnesses. All such statements regarding alleged
harassment have been stated for the first time by the said witnesses in
their evidence before the Court. None of them even mentioned such
alleged incidents in their statements made to the police. It is only at
Exhibit 12, a report submitted by PW1 and PW3 jointly to the police on
06.12.1995, that some reference had been made to the alleged
harassment by the appellant. But, in the oral evidence before the trial
Court, there are material contradictions brought on record. There is no
material on record to show that the deceased had indeed complained to
any of the aforesaid witnesses about the alleged physical and mental
harassment meted out by the appellant to the deceased. On the contrary,
the said witnesses have clearly stated that the appellant never demanded
any dowry. Therefore, such evidence does not prove “cruelty” under
Explanation (b) to Section 498-A of the I.P.C. All that then remains is
Explanation (a) to Section 498-A of the I.P.C. which refers to the willful
conduct being of such a nature as is likely to drive the woman to commit
suicide.
21. In this context, there is scant material on record to come
to the conclusion that the appellant throughout matrimonial life of
two and half years had acted in such a manner that he had driven
the deceased to commit suicide. The trial Court has accepted the
statements of PW1, PW3 and PW5 as gospel truth, without
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appreciating that there were material omissions which were
pointed out and proved on behalf of the defence. It is relevant that while
the incident occurred on 04.12.1995, the statement of PW5, mother of
the deceased, was recorded on 05.01.1996 and F.I.R. was registered
much later on 17.01.1996. This factor also adversely affects the case of
the prosecution.
22. The trial Court has emphasized on the alleged action of the
appellant in seeking to marry PW4 even during the subsistence of the
marriage with the deceased. The trial Court has observed that such an
action of the appellant must have proved to be devastating for the
deceased. But, a perusal of the evidence of PW4 and other material on
record shows that there is lack of evidence to come to such a conclusion.
Although there is a passing reference made in Exhibit 12, i.e. the report
dated 06.12.1995, submitted by PW1 and PW3 before the police, there is
nothing in the evidence of the said witness or the mother (PW5)
recording such alleged proposal to marry PW4 by the appellant. There is
not a single statement in the evidence of the said witnesses in respect of
such alleged proposal. In such a situation, the trial Court ought not to
have jumped to the conclusion that the appellant intended to marry PW4,
which was a factor that had allegedly driven the deceased to commit
suicide.
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23. Apart from this, it has come in the evidence of PW8
(Investigating Officer) that both hands of the accused were burnt on the
date of the incident and that the appellant was also admitted to hospital
at Ballarsha. PW2-Ambadas, the neighbour who reported the incident to
the police, has also clearly stated that during the burning of the deceased,
the appellant had gone inside his quarter by removing tiles of the roof of
the quarter. This itself indicates that the appellant had made attempts to
enter the house and perhaps to intervene and save the deceased. This
aspect was completely ignored by the trial Court while passing the
impugned judgment and order.
24. In view of the above, it becomes evident that the prosecution
failed to place on record sufficient evidence to prove “cruelty” as
contemplated under Section 498-A of the I.P.C. and consequently, the
presumption against the appellant could not have been raised. The
evidence of the material prosecution witnesses does not bring out specific
incidents of harassment and the evidence in respect thereof is very
general in nature, which falls short of satisfying the requirement of
Section 498-A of I.P.C. Even otherwise, the only specific incident about
which PW5 (mother of the deceased) has stated concerning the date on
which the incident took place, also appears to be not sufficient to hold
that the appellant could be said to have driven the deceased to commit
suicide or to have abetted her in taking the extreme step of suicide. As a
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consequence, it is not possible to hold the appellant liable under Section
306 of I.P.C. The ratio of the above quoted judgments clearly operates in
favour of the appellant herein, demonstrating that the trial Court
committed an error in convicting and sentencing the appellant under
Section 306 and 498-A of the I.P.C.
25. Accordingly, the instant appeal is allowed. The impugned
judgment and order passed by the trial Court is set aside and the
appellant is acquitted of the charges levelled against him. The bail-bond
of the accused stands cancelled.
26. As regards Criminal Revision No.156 of 2001 (Suo Motu)
which was registered pursuant to order dated 30.10.2001 for
enhancement of sentence, when the conviction and sentence of the
appellant has been set aside, there would be no necessity to pass any
further orders in pursuance of the notice for enhancement of sentence.
Consequently, the criminal revision also stands disposed of.
JUDGE
APTE
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