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H vs Ig on 14 August, 2009

Bombay High Court H vs Ig on 14 August, 2009Bench: V.R. Kingaonkar

(1)

IN THE HIGH COURT OF JUDICATURE OF BOMBAY, rt

BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 266 OF 1997 C

1. Janardhan s/o Asaram Pere, R/o Patoda, Tq. Aurangabad.

2. Sau. Bhagubai w/o Asaram

Pere, R/o Patoda, Taluka

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Aurangabad. APPELLANTS VERSUS

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The State of Maharashtra RESPONDENT H

…..

Smt. Sadhana S. Jadhav, advocate for the appellants. Mrs. R.D. Reddy, APP for the respondent/State. …..

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[CORAM : V.R. KINGAONKAR, J.]

[DATE : 14th August, 2009]

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ORAL JUDGEMENT :

1. Challenge in this appeal is to judgement B

rendered by learned Additional Sessions Judge, Aurangabad, in Sessions Case No. 138 of 1995 whereby the appellants have been convicted for offences punishable under sections 498A and 306 read with section 34 of the ::: Downloaded on – 09/06/2013 14:54:26 ::: (2)

I.P. Code. They have been sentenced to suffer rigorous rt

imprisonment for one (1) year and to pay fine of Rs. ou

1000/-, in default to suffer rigorous imprisonment for three (3) months for offence punishable under section C

498A read with section 34 of the I.P. Code. They are further sentenced to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 1000/-, in h

default to suffer rigorous imprisonment for three (3) ig

months for the offence punishable under section 306 read H

with section 34 of the I.P. Code.

2. Originally, four (4) accused persons were made y

to stand their trial for the offences indicated above. ba

Out of the four (4) accused persons, original accused Nos. 2 and 3, who are the husband and father-in-law of om

deceased Mangala, have been acquitted of the charges. The present appellants are the brother-in-law and B

mother-in-law of deceased Mangala.

3. It is undisputed that marriage between original accused No. 2 Kachru @ Tatya and deceased Mangala was performed on May 13th 1990. It is an admitted fact that ::: Downloaded on – 09/06/2013 14:54:26 ::: (3)

after the marriage, she started residing with both the rt

appellants and the acquitted accused Nos. 2 and 3 in ou

their joint house. There is no dispute about the fact that deceased Mangala was a matriculate young woman. She C

had given birth to a male child who had died. She had left a minor daughter at the time of her death and there was a child in her womb because she was pregnant for h

approximately three (3) months. ig

H

4. There is no controversy about the fact that said Mangala died as a result of poisoning. She had consumed some organochloro insecticide which is y

generally used for spraying on the crops to kill and ba

weed out the unwanted insecticides/worms. She committed suicide while in the matrimonial home on 15-08-1994 by om

consuming such insecticide.

5. Briefly stated, the prosecution case is that B

for about one year, Mangala was treated well by the appellants, her husband and the father-in-law. She secured a job as Anganwadi Sevika in the village. The trouble started thereafter. By virtue of her being ::: Downloaded on – 09/06/2013 14:54:26 ::: (4)

Anganwadi Sevika, she was required to talk with some rt

people concerned with the school. The appellants and ou

other members of the family used to suspect her chastity. They did not like her mixing with the people C

and talking with them. They started giving ill- treatment to her. She use to narrate to her parents that the appellants use to harass her and were beating h

her. As and when she use to go to her parental house, ig

she use to complain about harassment and ill-treatment H

meted out at hands of the appellants and the other members of their family. About one month before the incident of suicide, both the appellants had reached y

Mangala at house of her elder sister – PW4 Smt. Nandabai ba

in an rickshaw vehicle. They had tied her hands and legs while reaching her to the house of PW Smt. Nandabai. om

They told PW Nandabai that they did not want Mangala to reside with them because she was not behaving as per B

their say. However, she had gone to reside with her husband and his relatives because she wanted to attend her duty at the school. About 15 days before her death, she was accommodated in a separate room in the matrimonial home. Thereafter, a day before festival of ::: Downloaded on – 09/06/2013 14:54:26 ::: (5)

`Nagpanchami’, she had been to house of her parents as rt

she wanted to receive monthly salary from the office of ou

Zilla Parishad, at Aurangabad. At that time, she narrated to her mother that she was being harassed, C

troubled and beaten up by the members of the matrimonial home. She also told her mother that she was fed up with the life. Her mother advised her not to go back to the h

matrimonial home. She told the mother that if she will ig

not return, then she will not be able to attend the H

school and her services also will come to an end. She left house of her mother on next day of the Nagpanchami festival. After few days, her mother was informed by y

another younger brother-in-law of deceased Mangala, in ba

the evening of 15th August, 1994 that she was admitted in the Government Medical College Hospital at Aurangabad. om

The parents rushed to the hospital. They were dismayed to see that Mangala was no more. On the next day, her B

mother lodged FIR (Exh-14). On the basis of material gathered during course of investigation, the appellants, husband and father-in-law of deceased Mangala were together chargesheeted for the offences punishable under section 498A read with section 34 of the I.P. Code and ::: Downloaded on – 09/06/2013 14:54:26 ::: (6)

306 read with section 34 of the I.P. Code. rt

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6. The appellants pleaded “not guilty” to the charge which was explained to them. According to the C

defence, Mangala was disappointed due to insanity of her sister and also due to bad character of her sister by name Parwatibai who had some extra-marital relations h

with a watchman (Gurkha). It was also the version of ig

the defence that she was never subjected to ill- H

treatment or harassment by the appellants or anyone from the members of the matrimonial family. The appellants adopted defence of simple denial in so far as the charge y

of matrimonial cruelty is concerned. ba

7. At the trial, the prosecution examined in all om

five (5) witnesses in support of its case. The learned Sessions Judge placed reliance on the versions of the B

parents and sister of deceased Mangala. He held that their versions sufficiently proved the charge of matrimonial cruelty punishable under section 498A read with section 34 of the I.P. Code against the appellants. The learned Sessions Judge further held that since the ::: Downloaded on – 09/06/2013 14:54:26 ::: (7)

death of Mangala was within period of seven (7) years of rt

the marriage and under the suspicious circumstances and ou

she was being subjected to matrimonial cruelty, presumption under section 113A of the Evidence Act was C

available. The appellants were, therefore, convicted and sentenced as described hereinabove. h

8. Heard learned counsel for the appellants and ig

learned APP for the State.

H

9. Before I proceed to scrutinize the prosecution evidence, it may be stated that initially, the police y

registered a case of accidental death vide A.D. No. ba

50/1994 on the same day i.e. 15th August, 1994. A spot panchanama (Exh-9) was drawn. At the time of preparing om

the spot panchanama, wet earth was scratched out from the place. It gave repugnant smell. It was seized B

after putting it in a paper packet which was sealed. The police also recovered a white dhoti which was suspected to bear stains of vomiting, since it also gave repugnant smell. A separate seizure panchanama (Exh-10) was drawn at the relevant time. So also, inquest ::: Downloaded on – 09/06/2013 14:54:26 ::: (8)

panchanama (Exh-11) was drawn during the course of the rt

inquiry. All these panchanamas are admitted by the ou

defence during course of the trial. The fact that deceased Mangala was carrying foetus of about of about C

three (3) months pregnancy in the womb, when she committed suicide in the matrimonial home, is also beyond realm of dispute. Needless to say, ordinarily, h

such a young woman having pregnancy of about three (3) ig

months would not have taken such a drastic step of H

ending the life without there being substantial reason which could seriously create the mental turmoil. y

10. Coming to the version of PW1 Bhagubai who is ba

mother of deceased Mangala, it is explicit that after about one year of the marriage, Mangala started telling om

her parents that she was being ill-treated by the family members of the husband. She narrated to her parents that B

because she was required to talk with other people in the course of her work as Anganwadi-Sevika, the appellants used to suspect her fidelity. Her evidence further reveals that frequently, Mangala was required to visit her house at Aurangabad in connection with her ::: Downloaded on – 09/06/2013 14:54:26 ::: (9)

work as Anganwadi Sevika. She use to tell her that the rt

husband and his relatives were harassing her and they ou

use to tell her that she was no more required to her husband. Thus, there is oral evidence of mother of the C

deceased – Mangala to show that after one year of the marriage till her death, Mangala was ventilating her grievances about ill-treatment and harassment of the h

appellants, her husband and the other members of his ig

family. It emerges from the record that she was, H

however, more attached to her job as Anganwadi-Sevika. So, she was entitled to go by advice of her mother to stay with the parents and not to return to house of the y

appellants. She was afraid that she would be terminated ba

from the service if she will not attend the school. Therefore, she use to return to house of the appellants om

and her husband notwithstanding her grievances about their ill-treatment.

B

11. The versions of PW3 Bala, who is father and PW4 Smt. Nandabai who is the elder sister of deceased Mangala also purport to show that she was being subjected to ill-treatment in the matrimonial home. ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 10 )

Their versions go to show that about one month prior to rt

her death, the appellants had tied hands and legs of ou

Mangala and had reached her to house of PW4 Nandabai in an auto-rickshaw. Their versions also purport to show C

that the appellants use to suspect her chastity. The incident regarding reaching of Mangala at house of PW Smt. Nandabai in an auto-rickshaw with tied hands and h

legs is reflected from recitals of the FIR (Exh-14). The ig

act of the appellants to tie her hands and legs before H

reaching house of her elder sister would tantamount to cruelty. Nothing of much significance could be gathered from the cross-examination of PW Bala and PW Smt. y

Nandabai in the context of such incident. True, they ba

are the close relatives of deceased Mangala. Still, their versions cannot be discarded only because of their om

relationship with her. The charge for offence punishable under section 498A of the I.P. Code requires B

proof of necessary ingredients within the meaning of Explanation (a) appended to section 498A. In the present case, the allegations of the matrimonial cruelty do not come within the ambit of sub-clause (b) appended to the Explanation at foot of section 498A. It is obvious that ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 11 )

the conduct of the accused is required to be examined in rt

order to find out whether the charge of matrimonial ou

cruelty is made out. The Explanation reads as follows : C

“Explanation – For the purpose of this section, “cruelty” means –

(a) any willful conduct which is of such a h

nature as is likely to drive the woman to ig

commit suicide or to cause grave injury or danger to life, limb or health (whether mental H

or physical) of the woman; or”

12. The conduct of the appellants was such that y

deceased Mangala felt humiliated because she was being ba

attributed unchaste behaviour due to her meeting with the people or conversation with them. As stated before, om

there is evidence of PW Bala and PW Smt. Nandabai to show that only one month before her death, she was reached to house of the latter with her hands and legs B

tied like an animal. A young woman, who was enthusiastic and was doing job as Anganwadi-Sevika, was being ruthlessly treated by the appellants and the other family members. This conduct of the appellants would ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 12 )

certainly amount to “matrimonial cruelty” and their rt

saying that she was no more required to her husband also ou

is the additional factor in this behalf. It is pertinent to note that she use to narrate about the C

harassment and ill-treatment meted out to her as and when she use to visit house of her mother. h

13. At this juncture, I shall advert to testimony ig

of PW5 Dr. Syed Abdul Sami. His version reveals that he H

carried out post-mortem on the dead-body of Mangala 16th August, 1994. He corroborated the recitals of the post- mortem notes (Exh-19). His version purports to show y

that death of Mangala was result of consumption of ba

Endosulphan (insecticide). He states that he noticed 4% burns on lateral aspects of both legs of Mangala. He om

also noticed presence of greenish fluid with black particles in the stomach-wash. The appellants explained B

that the burn injuries were caused due to friction with the tyres of rickshaw. The explanation itself appears to be lame. For, the burns were reddish in colour. It is important to note that PW2 Vasant was examined by the prosecution. His version remained totally unchallenged. ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 13 )

He stated that his rickshaw was used on the relevant day rt

for reaching injured Mangala to the Government hospital. ou

His version further reveals that the original accused No. 3 i.e. father-in-law of deceased Mangala was then C

insisting that he shall drive the rickshaw vehicle fast. In fact, it is on basis of such statement of PW Vasant, the learned Sessions Judge drew inference that the h

original accused No.3 i.e. father-in-law of deceased ig

Mangala had no intention to eliminate her and wanted to H

save her life. Nowhere it was suggested to PW Vasant that due to friction with the tyres of the rickshaw, there were minor burns on both the legs of deceased y

Mangala. Obviously, such explanation put forth by the ba

appellants is afterthought and is unacceptable. om

14. The learned counsel for the appellants would submit that when the other two (2) accused were B

acquitted on the same set of evidence, the present appellants also should have been acquitted. It is argued that the evidence tendered by the prosecution is scanty. It is further contended that there is no proximity between the alleged ill-treatment and suicide ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 14 )

of Mangala. Reliance is placed on certain observations rt

in “K.R. Soorachari v. State of Karnataka” (2005 AIR SCW ou

2940) and “Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh” (2002 AIR SCW 2035). C

15. In case of “K.R. Soorachari v. State of Karnataka” (supra), the fact situation was quite h

different. The Apex Court noticed that there was really ig

no material to connect the appellant – K.R. Soorachari H

with the offence of matrimonial cruelty. It has been observed that the evidence on record only disclosed that the husband of the deceased had entertained suspicion y

ba

about her chastity and, therefore, harassed the wife. In the present case, however, there is not only the evidence to show that appellants suspected fidelity of om

the deceased – Mangala, but subjected her to physical cruelty. The case of “Sanju alias Sanjay Singh Sengar B

v. State of Madhya Pradesh” (supra) stands on quite different footing. It was a case wherein there was a quarrel between the accused and the deceased and the accused told the deceased to go and die. It has been ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 15 )

held that such utterance of the accused would not rt

constitute ingredients of “instigation” within the ou

meaning of section 107 of the I.P. Code. The argument that when the other two (2) accused are acquitted on the C

same set of evidence, then the present appellants also should have been acquitted, is rather unconvincing and unacceptable. There is positive evidence on record to h

hold that both the appellants had tied down hands and ig

legs of deceased Mangala prior to about one month of the H

incident of her suicide and had reached her at house of PW Smt. Nandabai. There is no such specific evidence in relation to the other two (2) accused and moreover, y

because they were acquitted, it is difficult to acquit ba

the present appellants when their conduct and act are not the same one.

om

16. Having regard to the totality of the B

circumstances and the evidence on record, it will have to be said that both the appellants subjected the deceased – Mangala to matrimonial cruelty during the period of her consortium with the husband. The willful conduct of the appellants was of such a nature as was ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 16 )

likely to drive her to commit the suicide. The rt

conviction of the appellants for offence punishable ou

under section 498A read with section 34 of the I.P. Code is, therefore, legal and proper. C

17. So far as the conviction for offence punishable under section 306 of the I.P. Code is concerned, it may h

be gathered that the learned Sessions Judge assumed ig

certain facts. It cannot be said that only because the H

married woman committed suicide within the period of seven (7) years of the marriage, presumption under section 113A of the Evidence Act would be attracted. y

There must be proximate relationship between the ba

matrimonial cruelty and the act of the suicide of a married woman. In order to attract presumption under om

section 113A of the Evidence Act, it is necessary to prove that “soon before her death”, the married woman B

was subjected to matrimonial cruelty and that she died under suspicious circumstances. In the present case, no-one from the neighbourhood of the appellants was examined. It has come on the record that since about 15 days before her death, deceased Mangala was separately ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 17 )

residing in a room of the same house. It is difficult rt

to say that in those 15 days, she was subjected to ou

matrimonial cruelty by the appellants. For, they were separately residing in the same house. There is no C

tangible evidence to show that the appellants subjected deceased Mangala to cruelty “soon before her death” and as such, the charge for offence punishable under section h

306 of the I.P. Code cannot be held as proved. ig

H

18. For the reasons aforestated, I have no hesitation in holding that the part of the impugned judgement is unsustainable whereas part of the order of y

conviction and sentence to the extent of offence ba

punishable under section 498A read with section 34 of I.P. Code is quite legal and proper. The appeal will om

have to be, therefore, partly allowed. B

19. In the result, the appeal is partly allowed and the impugned judgement of conviction and sentence to the extent of offence punishable under section 306 of the I.P. Code is set aside. The appellants are acquitted of the said offence and the fine amount, if deposited, is ::: Downloaded on – 09/06/2013 14:54:26 ::: ( 18 )

directed to be refunded to them. The remaining part of rt

the order of conviction and sentence in respect of ou

offence punishable under section 498A of the I.P. Code is, however, maintained. The appellants to surrender to C

the bail before the learned Sessions Judge within three (3) weeks to undergo the remaining part of the substantive sentence.

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[V.R. KINGAONKAR]

JUDGE

NPJ/criapl266-97

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