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Satishraj Gautam Ramteke vs The State Of … on 6 June, 2018

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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Cri.Appeal 273/01 @ Revn.156/01 2 Judgment

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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Cri.Appeal 273/01 @ Revn.156/01 4 Judgment

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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Cri.Appeal 273/01 @ Revn.156/01 6 Judgment

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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Cri.Appeal 273/01 @ Revn.156/01 7 Judgment

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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Cri.Appeal 273/01 @ Revn.156/01 9 Judgment

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

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up presumption as to abetment of suicide by a married woman
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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Cri.Appeal 273/01 @ Revn.156/01 11 Judgment

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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Cri.Appeal 273/01 @ Revn.156/01 12 Judgment

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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Cri.Appeal 273/01 @ Revn.156/01 14 Judgment

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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