IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.550 of 2003
Balaji s/o Vithal Kinhale,
Aged about 27 years,
R/o.-Brahmawadi, Tq. Hadgaon, District Nanded. …. Appellant.
The State of Maharashtra,
through P.S.O. Pusad (city). …. Respondent.
Shri R.M. Daga, Counsel for appellant.
Shri Vishal Gangane, APP for State.
Coram : Manish Pitale, J.
Date of reserving the judgment : 20TH July, 2018.
Date of pronouncing the judgment : 02nd August, 2018.
J U D G M E N T
By this appeal, the appellant has challenged judgment and order dated 11-08-2003 passed by the Court of Ad hoc Additional Sessions Judge, Pusad (trial Court) in Sessions Trial No.45 of 1999, whereby he has been convicted for offences punishable under Sections 498-A and 306 of the Indian Penal Code (IPC) and he has been sentenced to suffer simple imprisonment for three years and five years on the two counts, as also to pay fine of Rs. 1000/- on each count. The appellant was the husband of deceased. Along with him, his parents and sister were also arrayed as accused, but they were acquitted by the trial Court.
2. According to the prosecution case, the appellant and deceased Narmada got married on 17-05-1998 when dowry of Rs. 40,000/- was paid along with utensils and clothes by the family of the deceased. As per the case of the prosecution, for the first four months of marriage, the said Narmada was treated properly by her husband i.e. the appellant herein and her in-laws but thereafter, they started demanding amount of Rs. 20,000/- from her for the treatment of father of the appellant. The said Narmada had disclosed this fact to her mother and maternal uncle, as also a person who had helped in arranging the marriage. On 16-02-1999, when Narmada was alone in her matrimonial house, she set herself on fire and committed suicide.
3. On the same day at about 8.10 pm, a report was lodged by Sudhakar i.e. maternal uncle (PW-3) of deceased Narmada, on the basis of which First Information Report (FIR) was registered against the appellant and the other accused in Police Station Pusad city, District Yavatmal under Sections 304-B and 498-A of the IPC. The Investigating Officer-Abdul Rauf Khan (PW-6) undertook the investigation. On the basis of the said FIR and on the basis of material placed on record, the appellant and the other accused were charged with having committed offences under Sections 304-B and 498-A read with Section 34 of the IPC.
4. In order to prove its case, the prosecution examined six witnesses. (PW-1) Sushma Solanke was the landlady of the house where the accused lived with said Narmada. As she did not support the prosecution, she was declared hostile and she was cross examined by the prosecution. (PW-2) Shridhar Deshmukh was another tenant in premises adjacent to the house where the accused were living with Narmada, (PW-3) Sudhakar was the maternal uncle of Narmada and he was the complainant in the present case, (PW-4) Prayagbai was the mother of deceased Narmada, (PW-5) Maroti was the mediator who had arranged the marriage and (PW-6) Abdul Rauf Khan was the Investigating Officer.
5. The trial Court took into consideration the oral and documentary evidence placed on record and it found that the said Narmada had died a suicidal death. The trial Court found that the material on record was not sufficient to show that an offence under Section 304-B of the IPC was made out, but although charge under Section 306 of the IPC was not framed, the accused could be convicted under the same. The trial Court found that the evidence on record was not sufficient to convict the father-in-law (accused no.2), mother-in-law (accused no.3) and sister- in-law (accused no.4) of deceased Narmada and accordingly, the trial Court acquitted the said accused persons. But, on the same evidence and material on record, the trial Court found that the appellant (husband of deceased Narmada) was liable to be convicted under Sections 498-A and 306 of the IPC. On this basis, the trial Court convicted and sentenced the appellant in the aforesaid manner.
6. Shri R.M. Daga, learned Counsel appearing on behalf of the appellant submitted that when the trial Court had acquitted the other accused i.e. the parents and sister of the appellant herein, on the same set of evidence and material on record, the trial Court could not have convicted the appellant. It was submitted that since the respondent-State had not challenged the acquittal of the said accused, it had attained finality and the same had a bearing on the conviction imposed against the appellant. It was submitted that when the prosecution witnesses made allegations in their evidence regarding demand of money from the deceased and her family, against all the accused, and such evidence was disbelieved in respect of the other accused, the same benefit ought to have been given to the appellant also. It was submitted that on this ground itself, the appeal deserved to be allowed.
7. It was further submitted that when the appellant was charged for offence punishable under Section 304-B of the IPC, he could not have been convicted under Section 306 of the IPC without a specific separate charge being framed against him. It was further submitted that, in any case, the evidence on record was not sufficient for a presumption under Section 113-A of the Indian Evidence Act, 1872 [for short, ‘Act of 1872’], to operate against the appellant and that no offence either under Sections 306 or 498-A of the IPC was made out. Even if the demand of money was to be accepted, it was admittedly a demand made for treatment of the father of the appellant i.e. the father-in-law of deceased Narmada, for treatment of High Blood Pressure and that such a demand could never be termed as an unlawful demand as contemplated under Section 498-A of the IPC. There was no evidence on record to show that the appellant had inflicted any cruelty on the deceased and therefore, it was submitted that the conviction and sentence imposed on the appellant deserved to be set aside.
8. Per contra, Shri Vishal Gangane, learned APP appearing on behalf of the respondent-State, submitted that merely because the State had not challenged the acquittal of accused nos. 2 to 4, it did not ipso facto lead to a conclusion that the appellant (accused no.1) also deserved to be acquitted. According to the learned APP, a proper appreciation of evidence of the prosecution witnesses would demonstrate that specific and clear allegations were made against the appellant and that the conviction and sentence imposed by the trial Court only on the appellant, was sustainable. It was submitted that even if no specific charge was framed under Section 306 of the IPC against the appellant, he could be convicted under the said provision because the evidence and material on record was sufficient to prove that the appellant was indeed guilty of offence under the said provision. It was submitted that the offence under Section 306 of the IPC was a lesser or minor offence to an offence under Section 304-B of the IPC and that therefore, there was no substance in the contentions raised on behalf of the appellant. It was submitted that the evidence of the prosecution witnesses demonstrated that the deceased Narmada was harassed and even physically beaten by the appellant in connection with the aforesaid unlawful demand of Rs. 20,000/- and therefore, offences under Section 306 and 498-A of the IPC were clearly made out and that the appeal deserved to be dismissed.
9. Heard learned Counsel for the parties and perused the record. In the present case, marriage between the appellant and Narmada took place on 17-05-1998 and she died on 16-02-1999, which was clearly within seven years of marriage. The evidence and material on record was elaborately discussed by the trial Court and it was correctly found that Narmada died a suicidal death. It was found that residues of kerosene were found on the clothes of deceased Narmada and the other material on record clearly demonstrated that she doused herself with kerosene and died by setting herself on fire. No fault can be found with the said finding rendered by the trial Court.
10. But the question that arises for consideration is, whether the appellant could be convicted for having abetted the suicide of deceased Narmada and whether the material on record also demonstrated that he had committed an offence under Section 498-A of the IPC. It is significant that on the same set of evidence and material on record, the trial Court acquitted the other accused, which included the parents and sister of the appellant.
11. The material witnesses in the present case for offences under Sections 306 and 498-A of the IPC were PW-3 (maternal uncle of deceased Narmada), PW-4 (mother of deceased Narmada) and PW-5 (Mediator who had arranged marriage). A perusal of the evidence of PW-3, the maternal uncle and complainant in the present case, shows that in his examination-in-chief, he has stated that Narmada was treated properly in the matrimonial house for about four months after marriage. He stated that when Narmada had come to her maternal house during Diwali she had stated that a lot of money was spent on the treatment of her father-in-law. According to this witness, when Narmada came back to the maternal house for Nag-Diwali, she told that the appellant and his parents (accused nos. 2 and 3) were asking her to bring Rs. 20,000/- from her maternal place. He further stated that when the appellant came to the maternal house of Narmada to take her back after Nag-Diwali, he demanded Rs. 20,000/- from the mother of Narmada i.e (PW-4) who paid Rs. 2000/- to him. Thereafter, Narmada again came to her maternal house on Til-Sankranti, when she told that the condition of her father-in- law (accused no.2) was deteriorating and as amount was not paid, the appellant had beaten her on the instigation of his mother (accused no.3) and further that the appellant used to beat her under the influence of liquor. It was claimed that Narmada had further stated that the appellant and his parents i.e. accused nos. 1, 2 and 3 used to tell her to sell agricultural land for bringing Rs. 20,000/-. A reference was also made by this witness that the appellant and Narmada were going to one Bandu Ramrao Waikule, as the accused were demanding signature of Narmada on blank stamp paper so as to get the land of Narmada mutated in their names. It was claimed that the said Bandu had told this witness about the same. It is relevant that the said Bandu was not examined by the prosecution. This witness also claimed that the accused were demanding Rs. 20,000/- from Narmada. In the cross examination, this witness has stated that he had not mentioned in his report to the Police that Narmada was brought to the maternal house during Diwali and the portion in the report that Narmada was ill-treated immediately after marriage was incorrect. He further admitted that the accused themselves had spent Rs. 30,000/- on the illness of the father-in-law (accused no.2).
12. The evidence of the said (PW-3) (maternal uncle of deceased Narmada) shows that he has made allegations about demand of Rs. 20,000/- against the appellant as well as his parents i.e. the accused nos. 1, 2 and 3. It was claimed by him that such demand was made when deceased Narmada visited her maternal house during Nag-Diwali and Til-sankranti. Certain omissions in the statement of this witness were also brought out. There was nothing in the evidence of this witness to show that there were separate specific and distinct allegations made only against the appellant (accused no.1) as compared to allegations made against his parents (accused nos. 2 and 3).
13. The next material witness was PW-4 (mother of deceased Narmada). She also deposed that Narmada was treated properly for four months after marriage. She stated that when Narmada was brought to the maternal house during Diwali, she had stated that the appellant had demanded Rs. 20,000/- from her due to financial difficulties. This was in contradiction to the evidence of PW-3 (maternal uncle) who had not stated about any demand during Diwali. PW-4 (mother) further stated that when Narmada had come for Til-sankranti, she had told that the accused demanded money for financial difficulties and that if she did not bring the amount they ill-treated her. It was further stated that the accused used to beat her. It was also stated that when the father-in-law (accused nos. 2) and his brother had come to take Narmada back, 2/3 villagers had told them not to ill-treat Narmada, which they accepted and took Narmada with them. This witness does not say anything about Nag-Diwali, while PW-3 (maternal uncle) had claimed that the accused had demanded the said amount during Nag-Diwali. In her cross examination, omissions have been brought on record to the effect that she had not stated to the Police about beating given to Narmada for demand of money or about having paid Rs. 2000/- to the appellant during Diwali.
14. The next material witness in the present case was PW-5, the mediator who had arranged marriage. This witness stated that PW-4 i.e mother of Narmada had come to him after Nag-Diwali and informed him about demand of Rs. 20,000/- made by the appellant, upon which this witness claimed to have persuaded the appellant that since the financial position of PW-4 was not good, such a demand should not be made. He further claimed that PW-4 had come along with her daughter Narmada to him at the time of Makarsankranti, when Narmada told him that the appellant was demanding Rs. 20,000/- and he was asking her to sign on blank stamp paper and that he used to ill-treat her. He further claimed that he had convinced the father of the appellant in presence of respectable persons of the village to treat Narmada properly. He further stated that when his daughter had met mother-in-law of Narmada (accused no.3), she had said that the atmosphere in their house was not good and that Narmada should be taken away. But, in cross examination it is admitted by this witness that he had not invited Narmada to his house for tea during Sankranti and therefore, the statements attributed to her and her mother (PW-4), were all washed out. He also admitted that he had not told the Police about meeting with respectable persons and attempts to convince father-in-law i.e. accused no.2 to treat Narmada properly. Therefore, the evidence of the said witness i.e. PW-5 was full of improvements made before the Court.
15. A perusal of the evidence of aforesaid material witnesses i.e. PW-3 (maternal uncle), PW-4 (mother) and PW-5 (mediator), shows that there were material omissions and contradictions in the evidence of the said witnesses. There were discrepancies in their evidence pertaining to the alleged demands made by the accused. All these witnesses stated about the demand being made by accused nos 1, 2 and 3, as also the harassment caused to deceased Narmada by all of them. These witnesses did not attribute any separate or specific additional role to the appellant on the basis of which he could be segregated for separate treatment, as compared to the other accused. Yet, on the same set of evidence and material on record, the trial Court acquitted accused nos. 2, 3, and 4, while convicting only accused no.1 (appellant herein). The State did not challenge the acquittal of accused nos. 2, 3 and 4 which has a material bearing on the present case. In a similar situation, in the case of Mangat Ram vs State of Haryana, reported at (2014) 12 SCC 595, the Hon’ble Supreme Court held as follows :-
“13. PW 5, a distant relative of PW4, also stated that after 15-20 days of the marriage, the deceased came along with the accused to the residence of PW 4 and, at that time, the deceased had told PW 4 and others that the accused was harassing her since she had not brought dowry. PW 5 also deposed that articles like cooler, fridge, sofa, double bed were given to the accused by way of dowry. PWs 4 and 5 had deposed that a demand of dowry was made not only by the accused Mangat Ram, but also by his parents and sister. The trial Court recorded a clear finding that the prosecution had failed to bring home the guilt as against the parents and sister of the accused under Section 498-A, 304-B IPC, which was not questioned by the prosecution. However, if that part of the evidence of PWs 4 and 5 could not be believed against the rest of the accused, then we fail to see how it could be put against the accused alone, especially when PWs 4 and 5 had stated that the demand for dowry was made by all the accused on 13.8.1993. The evidence of PWs 4 and 5 has to be appreciated in the light of the fact that they were against the inter-caste marriage, since the appellant belonged to Scheduled Caste community and the deceased belonged to Aggarwal community, a forward community. Alleged dowry demand of Rs.10,000/- and the demand of scooter, stated to have been made by the accused, could not be established not only against the other three accused persons, but also against the appellant as well.”
16. Therefore, when the trial Court in the present case found that the evidence of PW-3, PW-4 and PW-5 was not enough to hold that accused nos. 2, 3 and 4 were guilty, it could not have held on the same set of evidence that the appellant (accused no.1) alone was guilty. This is particularly so because the State has not challenged the acquittal of accused nos. 2, 3 and 4 in the present case.
17. Apart from this, the consistent evidence of PW-3, PW-4 and PW-5 was that demand of Rs. 20,000/- was made by the accused for treatment of father-in-law (accused no.2), who was suffering from High Blood Pressure. It has come in the evidence of PW-3 (maternal uncle and complainant) that the accused themselves had spent Rs. 30,000/- for such medical treatment. The question is whether demand of money for such a reason could be said to be an unlawful demand as contemplated under Section 498-A of the IPC. In situations of financial distress, people do seek assistance from relatives and friends. In the present case, it was not as if demand of money was being made for some luxurious item by the accused or for any property or valuable security. Admittedly, the demand pertained to medical treatment of father-in-law of deceased Narmada. It could not be termed as an unlawful demand. The evidence of the prosecution witnesses as regards the alleged harassment of deceased Narmada is also inconsistent and full of omissions and contradictions. The three witnesses i.e. PW-3 (maternal uncle), PW-4 (mother) and PW-5 (mediator), have given conflicting versions as to the manner in which and the points in time when the deceased Narmada was harassed. As noted above, these witnesses have made such allegations of harassment against all the accused and yet the trial Court convicted only the appellant (accused no.1), while acquitting the other accused. Such acquittal was not challenged and it attained finality. In these circumstances, the prosecution case falls short of proving that the appellant (accused no.1) alone was guilty of offence under Section 498-A of the IPC.
18. As regards the offence punishable under Section 306 of the IPC, a perusal of the said provision shows that there ought to be material on record to prove that the appellant abetted commission of suicide by deceased Narmada. As the death of Narmada occurred within seven years of marriage, the presumption under Section 113-A of the Act of 1872, would come into operation in the present case. But, such presumption coming into operation would be subject to the condition that the prosecution was able to prove that the appellant had subjected Narmada to cruelty. Such cruelty, as per the explanation given in the said provision has the same meaning as given in Section 498-A of the IPC. Thus, merely because death of Narmada took place within seven years of marriage, the presumption under Section 113-A of the Act of 1872 would not operate against the appellant. As regards the proof of cruelty under Section 498-A of the IPC, cruelty has been specifically defined in the Explanation to the said provision which is relevant. Section 498-A of the IPC 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 willful 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.”
19. Therefore, it was necessary for the prosecution to prove that there was evidence and material on record to show that the conduct of the appellant was such that it fell within Clause (a) or Clause (b) of the Explanation to Section 498-A of the IPC. As noted above, the material on record in the present case was in the form of evidence of PW-3 (maternal uncle), PW-4 (mother) and PW-5 (Mediator). All these witnesses had not stated that it was only the appellant who had made demand of money from the deceased and harassed her, but they had made statements in this regard against all the accused. No specific role was attributed to the appellant. The allegations pertaining to harassment as against the accused nos. 2, 3 and 4 were disbelieved by the trial Court itself and they stood acquitted. Their acquittal attained finality and it was only the appellant who was held guilty under Section 306 of the IPC by the trial Court. A perusal of the evidence of the said witnesses and the other material on record does not bring out a specific case against the appellant. There is insufficient material on record to conclude that the conduct of the appellant was such that it could fall within Clause (a) or Clause (b) of the Explanation to Section 498-A of the IPC.
20. There was nothing on record to show that the conduct attributed to the appellant by the prosecution witnesses was materially different from that of the other accused. In any case, the demand of Rs. 20,000/-, even as per the prosecution witnesses, was for medical treatment of father-in-law of deceased Narmada. It could not be termed to be an unlawful demand for any property or valuable security and therefore the conduct of appellant or for that matter, as found by the trial Court itself, conduct of all the other accused would not fall within the definition of cruelty under Clause (a) or Clause (b) of Section 498-A of the IPC. Therefore, there was no evidence on record, much less specific evidence against the appellant, to show that deceased Narmada had been subjected to cruelty when she committed suicide. The trial Court, while holding only the appellant guilty of offence punishable under Section 306 of the IPC, has failed to take into consideration these aspects. There is no analysis of the evidence and material on record in the context of ingredients of the offence under Section 498-A of the IPC, presumption under Section 113-A of the Act of 1872 and the necessary ingredients of the offence under Section 306 of the IPC. As a result, the trial Court, while holding that the prosecution failed to prove charge under Section 304-B of the IPC against the accused, has abruptly come to the conclusion that the prosecution had successfully proved charge under Section 306 of the IPC, only as against the appellant. The reasoning of the trial Court was rendered erroneous because the evidence and material on record was not appreciated in the correct perspective, keeping in mind the ingredients of the offences under Sections 498-A and 306 of the IPC. The fact that the accused nos. 2 to 4 stood acquitted by the trial Court and their acquittal was not challenged by the respondent-State, has dealt a fatal blow to the case of the prosecution against the appellant (accused no.1). Therefore, this Court does not propose to go into the question as to whether the appellant could have been convicted under Section 306 of the IPC, when no separate charge was framed by the trial Court under the said provision. The prosecution failed to prove its case and the trial Court erred in convicting and sentencing the appellant under Sections 306 and 498-A of the IPC.
21. In the light of the above, it becomes evident that the impugned judgment and order passed by the trial Court is not sustainable. The appellant could not have been convicted under Sections 498-A and 306 of the IPC. Accordingly, this appeal is allowed. The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of the said charges. Since the appellant was on bail, his bail bonds shall stand cancelled.