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Ananta Laxman Pansare vs The State Of Maharashtra on 7 May, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.305 OF 2002

Ananta Laxman Pansare
Age – 52 yrs., Occ : Business,
R/at – Bunglow No.19,
Servant’s Quarter Khadki, Pune-3. … Appellant/
Orig. Accused
versus

The State of Maharashtra
(At the instance of
Khadki Police Station, Pune,
C.R.No.124/00) … Respondent
…….

• Mr.Abhaykumar Apte, Advocate for the Appellant.
• Ms.Sharmila S. Kaushik, A.P.P. for the State/Respondent.

CORAM : SARANG V. KOTWAL, J.
DATE : 07th MAY, 2018.

JUDGMENT :

1. The present Appeal is preferred by the Appellant

challenging the Judgment and Order dated 07/02/2000 passed

by the 8th Additional Sessions Judge, Pune, in Sessions Case

No.515/2000.

Nesarikar

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2. By the said impugned Judgment and Order the learned

Trial Judge has convicted the Appellant for the offence

punishable u/s 498-A of the Indian Penal Code. The Appellant

was sentenced to suffer rigorous imprisonment for three years

and to pay a fine of Rs.500/- and in default of payment of fine,

was sentenced to suffer simple imprisonment for one month.

The Appellant was also convicted for the offence punishable u/s

306 of the Indian Penal Code and was sentenced to suffer

rigorous imprisonment for five years and to pay a fine of

Rs.500/- and in default of payment of fine to suffer simple

imprisonment for one month. Both the sentences were directed

to run concurrently and the Appellant was given benefit of set

off u/s 428 of Cr.P.C. for the period, for which he was in jail

during trial.

3. Charge was framed vide Ex.2/1 on 02/02/2001. It is

mentioned in the charge that the Appellant was subjecting his

wife Kavita Ananta Pansare (since deceased) to cruelty and ill-

treatment on the ground that she was not able to cook properly

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and she did not fulfill demand of Rs.1,000/- and that his acts

were within the section of 498-A of IPC. The Appellant was also

charged for the commission of offence punishable u/s 306 of

IPC, as on 11/09/2000 Kavita committed suicide by pouring

kerosene and setting herself on fire. The Appellant was charged

for abetting her suicide.

4. In support of its case, the prosecution has examined

five witnesses. P.W.1 Sushila Laxman Thite was the mother of

the deceased Kavita and had lodged the FIR. P.W.2 Laxman

Ganpat Thite was the father of the deceased Kavita. He was

examined on the point of ill-treatment meted out to Kavita and

P.W.3 Sampat Shankar Kadam, was the maternal uncle of

Kavita. He was examined to corroborate the evidence of P.W.1

and P.W.2. Bhanudas Dhakuji More was examined as P.W.4. The

said witness was the Pancha when the spot panchanama was

conducted. P.W.5 PI Dattatraya Chandu Sonawane was

examined as the Investigating Officer, who was attached to

Khadki Police Station at the relevant time. Besides this oral

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evidence, the prosecution has relied on the documentary

evidence in the form of post-mortem notes, the spot

panchanama and inquest panchanama. The post-mortem notes

show that the deceased had suffered 96% burns.

5. The prosecution case has unfolded through the

evidence of P.W.1 Sushila Thite. According to her Kavita got

married to the Appellant in the month of March 2000. After

marriage both of them started residing in the house of the

Appellant at Khadki. According to her, it was the Appellant’s

second marriage. Sushila has further deposed that, initially in

the first month after the marriage, the relations between the

couple were good. But subsequently, the Appellant started ill-

treating Kavita. Sushila has deposed that the Appellant was ill-

treating Kavita on the ground that Kavita was not able to cook

food properly. She has further deposed that the Appellant used

to give abuses to Kavita. According to Sushila whenever Kavita

visited her house, she used to disclose about such ill-treatment.

On two occasions even Sushila visited their house to have a

word with the Appellant. Even one month prior to the incident

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dated 11/09/2000, Sushila along with her brother Sampat

Kadam had gone to meet the accused to tell him to behave

properly. P.W.1 Sushila further deposed that on 10/09/2000

there was a Pooja at her residence, when Kavita had visited her.

At that time Kavita told her that the Appellant was demanding

Rs.1,000/- for taking a room on rent. Sushila expressed her

inability and Kavita returned back to her house. P.W.1 Sushila

further deposed that, on 11/09/2000 at around 12.00 p.m. the

Appellant called her on telephone and asked for Rs.1,000/- for

taking a room on rent. Even at that time P.W.1 Sushila declined

as she did not have that much amount. On that day itself at

about 02.00 p.m. Sushila received a telephonic call that Kavita

had sustained burn injuries. P.W.1 Sushila then went to Sassoon

Hospital and found that Kavita had succumbed to her burn

injuries. Thereafter Sushila went to the Police Station and

lodged her FIR. The FIR is on record at Ex.14. The FIR was

registered vide C.R.No.124/00 at Khadki Police Station u/s 498-

A and 306 of IPC. P.W.2 Laxman Thite and P.W.3 Sampat

Kadam have deposed on similar lines.

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6. In the cross-examination of P.W.1 the defence has

brought on record, the fact that, one month prior to the date of

incident of commission of suicide, Kavita had left the house of

the Appellant without informing him and was not traceable for

two days. Finally she was brought by P.W.3 Sampat Kadam to

P.W.1’s house. Subsequently P.W.1 Sushila has admitted in her

cross-examination that Kavita had refused to accompany the

Appellant to their house and that Kavita had refused to divulge

her whereabouts when she had gone missing.

7. P.W.2 Laxman Thite had denied that Kavita had left

the Appellant’s house without informing him. This witness has

admitted in his cross-examination that he has not stated before

the police that prior to 10/09/2000 Kavita disclosed to him that

Appellant had demanded the amount from her.

8. P.W.3 Sampat Shankar Kadam has deposed that the

Appellant used to beat her and used to tell her to bring amount

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from her parents. However, in his cross-examination he has

admitted that he had not stated before the Police that since the

date of marriage the Appellant was ill-treating Kavita and that

he was beating her on the count of demand of money. He has

also admitted that he has not told the police as to when Kavita

had visited his house.

9. P.W.4 Bhanudas Dhakuji More, who was examined as

a Panch for spot panchanama has produced the spot

panchanama on record at Ex.24. The spot panchanama describes

the place of incident which was in one of the servant quarters of

Bungalow No.19/1, Hansbari Road, Khadki. A stove and a match

box was found on the kitchen platform. It was a residential

quarter consisting of only one room. A white colour Can without

lid, having some kerosene, was seized from the spot. Some burnt

pieces of clothes were also seized. The deceased was found in

burnt condition in the same room. P.W.4 Bhanudas More,

however in his cross-examination has admitted that the police

had written the panchanama at the Police Station and he signed

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on the panchanama as he was told by the police. He has also

admitted that he had acted as a Panch on three occasions.

10. P.W.5 PI Dattatraya Chandu Sonawane has deposed

about the investigation carried out by him. He has recorded

statements of witnesses, had arrested the accused, had

conducted the spot panchanama, had collected the post-mortem

notes and had finally submitted the charge-sheet. He admitted

in the cross-examination that he did not seize the stove.

11. The Appellant took a defence of total denial and did

not state anything specifically to throw light on the incident.

12. The learned Trial Judge after recording the evidence,

and the statement of the Appellant and after considering the

submissions made on behalf of the parties, recorded his findings.

The learned Judge convicted and sentenced the Appellant as

mentioned earlier.

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13. The learned Trial Judge mainly relied on the evidence

of P.W.1, P.W.2 and P.W.3 and reached a conclusion that the

prosecution has sufficiently proved its case. The learned Trial

Judge was satisfied that the evidence led by the prosecution

clearly establishes the case u/s 498-A as well as under section

306 of IPC. The learned Judge also referred to the presumption

u/s 113-A of the Indian Evidence Act. Thus, after considering

these aspects, the learned Judge has passed the impugned

Judgment and Order.

14. I have heard learned Counsel Mr. Abhaykumar Apte

for the Appellant and Ms. Sharmila S. Kaushik, A.P.P. for the

State of Maharashtra.

15. Mr.Apte submitted that the prosecution has miserably

failed to prove its case. He submitted that none of the

prosecution witnesses has given cogent evidence to explain the

nature of ill-treatment or harassment meted out to deceased

Kavita and therefore the allegations fell much short of the

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requirements of section 498-A of the IPC. He submitted that

having failed to prove its case u/s 498-A, consequently even the

offence under section 306 of IPC is not established. He

submitted that assuming the prosecution case was true,

Rs.1,000/- was demanded by the Appellant as a help to acquire

the residential room for himself and deceased Kavita. Therefore

this demand cannot be termed as unlawful demand falling

within the meaning of section 498-A of IPC. Mr.Apte futher

submitted that the Appellant’s first marriage was not an issue in

this case and it was nobody’s case that because of his first

marriage or suppression thereof, the victim had committed

suicide.

16. Per contra Ms.Sharmila S. Kaushik, A.P.P. for the State,

submitted that the prosecution has fully established its case

beyond reasonable doubt. The prosecution witnesses have

consistently deposed about the cruelty meted out to the

deceased right after one month of the marriage till her

commission of suicide in September 2000. She submitted that

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the victim committed suicide within six month of her marriage,

therefore presumption u/s 113-A of the Evidence Act was clearly

attracted as the Appellant has failed to discharge his burden.

She submitted that there was an unlawful demand of

Rs.1,000/-. She further submitted that there was a phone call at

around 12.00 p.m. on 11/09/2000 by the Appellant to P.W.1. At

that time, the P.W.1 had refused to pay amount and within two

hours of that phone call, the victim had committed suicide and

therefore the incident was too proximate to that phone call.

Thus, according to Ms.Sharmila S. Kaushik, Addl.P.P., the

Appellant was the perpetrator of the crime and should be held

liable for the commission of suicide by the deceased Kavita.

17. I have gone through the entire record and proceedings

with the assistance of both the learned Counsel. P.W.1, P.W.2

and P.W.3 are close relations of the deceased Kavita. They are

natural witnesses, who would know mental state of the

deceased. According to P.W.1, till one month after the marriage,

which took place in March 2000, the relations between the

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couple were cordial. Thereafter the Appellant started ill-treating

Kavita, on the ground that she was not able to cook properly

and on that ground the Appellant used to give abuses to her.

P.W.1 has stated that this fact was told to her by Kavita,

whenever she used to visit her house. This witness thereafter

refers to the demand of Rs.1,000/- which was made by the

victim Kavita at the behest of the Appellant on 10/09/2000. In

respect of such demand P.W.1 has not stated in her deposition

that on her refusal to meet this demand, the deceased was

harassed or ill-treated on that specific count. On the next date

i.e. on 11/09/2000 there was a phone call by the accused

reiterating the said demand, but even thereafter there is

absolutely no evidence as to whether the Appellant had harassed

the deceased on the ground that P.W.1 had refused to meet such

demand.

18. P.W.2 has specifically admitted that he had not

disclosed to the police that Kavita had told him that the

Appellant was demanding money from her and on that ground

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she was being harassed. Insofar as the demand of Rs.1,000/- is

concerned, it was made by Kavita to P.W.1 and therefore in that

behalf evidence of P.W.1 carries more weightage. Even P.W.3

has admitted that he had not stated before the police that the

Appellant was beating Kavita on the ground of demand of

money. Thus, there is no evidence to show that the Appellant

was ill-treating the deceased on the ground that his unlawful

demand for money was not fulfilled. There are no allegations

that for non-payment of Rs.1,000/- specifically Kavita was

harassed or ill-treated at any point.

19. The Appellant had called the P.W.1 at about 12.00

p.m. on 11/09/2000. There is no evidence to show as to from

where he had made this phone call. The prosecution has not led

any evidence to show that after this phone call was made, the

Appellant had met the deceased or had conveyed the refusal of

P.W.1 to her. There is absolutely no evidence to show what

transpired from 12.00 p.m. to 02.00 p.m. The prosecution has

not led any evidence of any neighbour or any other

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independent evidence to show that there was any further

discussion between the Appellant and the deceased after P.W.1

had refused to pay amount when the Appellant had made that

phone call at 12 O’clock.

20. In this background, it is necessary to consider and

analyze section 498-A of the Indian Penal Code.

498A – 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
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

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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.

21. Insofar as the allegations of ill-treatment are

concerned, from the evidence it appears that the prosecution

witnesses have not described any specific instance or specific

nature of ill-treatment. P.W.1 has merely stated that the

Appellant used to harass Kavita because she was unable to cook

properly and that he used to give abuses to her. This conduct by

itself will not fall within the meaning of explanation (A) u/s

498-A, where the term “Cruelty” is explained. In the fact of this

case, it cannot be said that this conduct of the Appellant was of

such a nature that it was likely to drive Kavita to commit suicide

or to cause grave injury or danger to her life, limb or health. The

allegations fall much short of the requirements of explanation

(a) to section 498-A.

22. Insofar as the demand of Rs.1,000/- is concerned, as

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mentioned earlier, there are no allegations that on that count

specifically Kavita was harassed. Therefore even explanation (b)

where “Cruelty” is explained u/s 498-A is not attracted in the

present case. Even as per the prosecution case, the Appellant

was seeking financial help to secure a room on rent. Considering

the Appellant’s poor financial condition, such request for help

cannot be termed as ‘unlawful demand.’ There is no evidence to

show that the deceased was ill-treated because the amount of

Rs.1,000/- was not paid.

23. Ms.Kaushik submitted that since the deceased Kavita

had committed suicide within six month of marriage, section

113-A of the Indian Evidence Act, is attracted. The Court was

required to raise the presumption against the accused. The

burden shifted on the Appellant to prove his defence. In this

context it is necessary to consider section 113-A of the Indian

Evidence Act, which reads thus;

“113-A – Presumption as to abetment of suicide by a
married woman –

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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
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.”

24. In this case it is true that the deceased Kavita had

committed suicide within six months of marriage. But the crucial

question remains as to whether the prosecution has been able to

discharge its initial burden of showing that her husband had

subjected her to cruelty. For the purpose of this section again

reference is made to the explanation to section 498-A of IPC

where ‘cruelty’ is explained. As discussed hereinabove, I have

already reached the conclusion that the prosecution has not

been able to prove that the Appellant had treated the deceased

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with cruelty within the meaning of section 498-A of IPC. In my

opinion, therefore section 113-A is not attracted.

25. For applying section 113-A of the Evidence Act, it is

not sufficient for the prosecution to show that the deceased

committed suicide within seven years of marriage. It is equally

necessary for the prosecution to show that the deceased was

treated with cruelty by such accused.

26. In the instant case there is a strong indication that the

prosecution witnesses are suppressing material facts from the

Court. Those facts are brought out only in cross-examination of

the witnesses. As can be seen from their cross-examination, the

deceased Kavita had left the house of the Appellant one month

prior to the incident of commission of suicide. The prosecution

witnesses have deliberately avoided to mention this fact either

before police or in their depositions. P.W.3 had in fact told

Kavita not to divulge her whereabouts to the Appellant when

she had gone missing. This evidence shows that Kavita was very

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reluctant to accompany the Appellant after she had left his

house one month prior to the incident. P.W.1 and P.W.3 had

almost forced her to go and reside with the Appellant against

her wish. Mr.Apte submitted that this can be one of the reasons

for her commission of suicide as she was forced to reside with

the Appellant against her wish. The accused has to prove his

defence only on the touch stone of probabilities and in my

opinion, the Appellant in the instant case has sufficiently

probabalized his defence to that extent.

27. In this background, therefore, none of the acts of the

Appellant can be said to be falling within the meaning of section

107 of IPC, where abetment is defined. In this view of the

matter, the Appellant cannot be held liable for commission of

offence punishable u/s 306 of the IPC as his act does not fall

within the definition of abetment as given u/s 107 of IPC. There

is no evidence to show that the Appellant either instigated or

aided the deceased in commission of suicide.

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28. Thus, taking overall view of the matter as mentioned

hereinabove I am of the opinion that the prosecution has failed

to prove its case beyond reasonable doubt. The Trial Court has

not considered this aspect correctly. With the result, the Appeal

is allowed. The Judgment and Order dated 07/02/2000 passed

by the 8th Additional Sessions Judge, Pune, in Sessions Case

No.515/2000 is set aside. The Appellant is acquitted from all the

charges. The Appellant’s bail bonds stand discharged.

(SARANG V. KOTWAL, J.)

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