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H vs State Of Maharashtra on 10 August, 2012

Bombay High Court H vs State Of Maharashtra on 10 August, 2012Bench: T.V. Nalawade

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IN THE HIGH COURT AT BOMBAY

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APPELLATE SIDE, BENCH AT AURANGABAD ou

CRIMINAL APPEAL NO. 216 OF 2000

1. Ankush S/o Jayavantrao Gajar Age : 35 years,

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2. Raosaheb S/o Jayavantrao Gajar Age : 40 years,

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3. Bhausaheb S/o Jayvantrao Gajar Age : 37 years,

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All agriculturists and R/o

Gundewadi, Tq. & Dist. Jalna. ….APPELLANTS

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Versus

State of Maharashtra

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….RESPONDENT

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……

Mr. Joydeep Chatterji, advocate for the appellants. Mr. D.V. Tele, APP for respondent/State. ……

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CORAM : T. V. NALAWADE, J. Reserved on : 28.06.2012 Pronounced on : 10.08.2012 B

JUDGMENT :

1. Appeal is filed against the judgment and order passed in Sessions Case no. 27 of 1994, which was pending in the Court of 3rd Additional Sessions Judge, Jalna. The trial Court has ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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convicted all the appellants for offences punishable under rt

Sections 306, 498A and 34 of the Indian Penal Code and they are ou

sentenced to suffer rigorous imprisonment. Both sides are heard in appeal. Original record was called for perusal. C

2. In short, the facts leading to the institution of appeal, can be stated as follows :-

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Deceased Rukmini @ Sumitrabai was a daughter of complainant. She was given in marriage to appellant no.1 about H

two years prior to the date of incident. Appellant nos. 2 and 3 are elder brothers of the appellant no.1. Accused no.4 Jayvantrao was y

the father of the appellants and he died during trial. All the ba

appellants were living in joint family at the relevant time when Rukmini started cohabiting with appellant no.1. om

3. After six months of the marriage, the deceased visited the house of her parents and disclosed that the accused persons B

had asked her to bring Rs. 5,000/- from her parents. She disclosed that accused were in need of money as they wanted to install the electric motor on their well. She disclosed that there was illtreatment to her and accused were harassing her on this count. She disclosed to her parents that accused were giving abuses to ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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her, they were not providing sufficient food to her and she was rt

driven out of matrimonial house time and again. She said to the ou

parents that she will go to matrimonial house only when the amount of Rs. 5,000/- was given to her. C

4. During two years of cohabitation, deceased had made such disclosure at least on two occasions to her parents. On both h

the occasions the parents promised her that they would make ig

some arrangement and they would give amount after few months. About two months prior to the incident in question, the H

complainant had direct talk with accused no.1 and his brothers and on that occasion the complainant had given promise to give y

money within two to three months. However, the complainant ba

could not make such arrangement.

5. Sumitrabai committed suicide by consuming poison om

on 11.10.1993. Father gave report against the appellants on 12.10.1993 and crime at C.R. No. 212 of 1993 came to be B

registered in Jalna Tahsil Police Station for the aforesaid offences. PSI Shri Andurkar made investigation of the case. Statements of some of the relatives of the deceased on parents side came to be recorded.

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6. The defence has not disputed that Sumitrabai died rt

due to poisoning. Relevant record in this regard is admitted. In the ou

trial Court the prosecution examined four witnesses who include the parents of the deceased, the maternal uncle of deceased and Investigating Officer. In defence, accused examined one Raosaheb C

More, who is relative of both the sides. Trial Court has believed the prosecution witnesses and finding is given that there was demand h

of Rs. 5,000/- from the accused and to force this demand ig

illtreatment was given to the deceased by the appellants. Trial Court has further held that suicide was committed due to H

illtreatment given by the appellants. In appeal it was submitted that the investigation was not done fairly. It was submitted that no y

record was collected by the police to ascertain as to whether the ba

appellants really own lands and they were really in need of any electric motor. It was submitted that specific material was brought on record to show that deceased was living with her parents for om

most of the time after the marriage and she was reluctant to come to matrimonial house. It was submitted that the material on B

record has created probability that Sumitrabai committed suicide to avoid to live with appellants.

7. The death took place within two years of the marriage. Karbhari (PW-1), father of deceased has given evidence ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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that for one year after the marriage there was no illtreatment to rt

the deceased. He has deposed that after one year of the marriage ou

the deceased made first disclosure about the illtreatment and such disclosures were made on two to three occasions. PW-1 has deposed that the deceased disclosed that all the appellants were C

asking her to bring Rs. 5,000/- from her parents as they wanted such amount to install the electric motor on their well. PW-1 has h

deposed that the deceased disclosed that there was threat of live ig

given to her by the accused. PW-1 has deposed that he had promised to give amount after Diwali festival. PW-1 has deposed H

that he had given advise to accused no.1 in this regard. y

8. F.I.R. at Exhibit – 52 is proved in the evidence of ba

Karbhari (PW-1). In the Court no convincing substantive evidence is given on the nature of illtreatment by Karbhari. He has tried to say that the deceased was driven out of house by the appellants om

and threat of life was given to her but other evidence which includes his cross examination shows that the deceased was B

probably never driven out of the matrimonial house. Other evidence has created one probability that the husband was always interested in resuming cohabitation and he was asking relatives of the deceased on parents side to send her back to the matrimonial house.

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9. Parvatabai (PW-2), the mother of deceased has given ou

similar evidence. She has further deposed that she had reached the deceased to matrimonial house two to three days prior to the date of incident in question. She has deposed that she had C

promised accused that their demand would be meet with at the time of Diwali festival. She has deposed that she had requested h

accused not to give illtreatment to the deceased. Radhakishan ig

(PW-3), the maternal uncle of the deceased has given similar deposition on so called disclosures made by the deceased. H

10. The evidence of Karbhari (PW-1) shows that the y

deceased used to visit his house on the occasions of festivals. The ba

maternal uncle of the deceased has admitted that deceased celebrated first Diwali festival in the house of her parents. Thus the evidence shows that the appellants never prevented om

deceased from visiting house of her parents. On the other hand, the evidence of three witnesses does not show that at any time B

they were required to request accused to accept the deceased back in matrimonial house. The evidence in cross examination of PW-1 shows that he was not able to tell as to exactly when the first disclosure was made by the deceased regarding the illtreatment. The evidence that on two to three occasions such ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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disclosures were made, does not appears to be convincing in rt

nature.

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11. In the F.I.R., there is no mention that the deceased had returned to matrimonial house few days prior to incident. C

Only during cross examination of PW-1 he admitted that the deceased had just returned to matrimonial house. It is suggested h

to this witness during cross examination that the deceased did ig

not like the husband and so she was not ready to return to matrimonial house. It is further suggested that deceased was sent H

back to matrimonial house against her will and probably due to that reason she committed suicide. It is also suggested to PW-1 y

that the accused persons do not own any agricultural lands and so ba

there was no need of money for installation of electric motor. All these suggestions are denied by the PW – 1. om

12. In cross examination, PW-2 has admitted that the deceased had visited the house of parents on five to six B

occasions. She has admitted that accused no.1 had visited her house and he had requested the parents of deceased to send deceased back to matrimonial house. Radhakishan (PW-3) has admitted in cross examination that whenever accused no.1 had met, him accused no.1 had asked him to send the deceased back ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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to matrimonial house. These vital admissions have created rt

probability that the accused no.1 had desire to resume ou

cohabitation and he was not putting any condition for the same.

13. No evidence is given by the prosecution witnesses as C

to for how many months the deceased had stayed in her parents house. Positive attempt was made by the witnesses to hide many h

material things from the Court. These circumstances and conduct ig

of the prosecution witnesses have created reasonable doubt of case of prosecution that there was illtreatment to the deceased or H

there was demand of money from the appellants and due to that the deceased committed suicide. Even if the evidence given by y

Raosaheb, defence witness is ignored, the aforesaid ba

circumstances are sufficient to create probability in favour of accused that deceased was reluctant to return to matrimonial house and as she was forced to return, she committed suicide. om

14. Three relatives of the deceased on parents side have B

not given account of any lands owned by the accused. In the evidence of Investigating Officer (PW-4) it is brought on record that the incident took place in land survey no. 66 which is owned by Ramkisan Gajar. The evidence of maternal uncle shows that parents of deceased had many relatives in the said village, but no ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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such relative had come forward in support of prosecution case. No rt

reason is given by the Investigating Officer as to why the record in ou

respect of agricultural land of the accused is not collected. In such case, it become necessary for Investigating Agency to collect the record to ascertain truth. It can be said that the investigating C

agency did not act fairly.

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15. In view of the aforesaid discussions, this Court holds ig

that the case of the prosecution that there was demand of Rs.5,000/- and on that account the illtreatment was given to the H

deceased cannot be believed. Material on record has created other probability. For proving the offence punishable under y

Section 498A the prosecution is required to prove the ingredients ba

mentioned in Section 498A which are as under :- “In Section 498A of IPC, the word `cruelty’ is defined om

as follows :-

(a) any willful conduct which is of such a nature as B

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 ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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person related to her to meet any unlawful rt

demand for any property or valuable security or is on account of failure by her or any person ou

related to her to meet such demand.”

16. In the case reported as “Girdhar Shankar Tawade C

V/s State of Maharashtra” 2003 Bom.C.R. (Cri) 575), the Hon’ble Apex Court has observed that : h

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“The basic purport of the statutory provision in Sec. 498A is to avoid `cruelty’ which stands defined by H

attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning y

to the word `cruelty’ as is expressed by the legislature : Whereas explanation (a) involved three specific ba

situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical and thus om

involving a physical torture or atrocity. In explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislature intent B

expressed is equally heinous to snatch the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of `cruelty’ in terms of sec. 498A”. ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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It is further observed by the Apex Court at para nos. 16, 17 rt

and 18 that in order to bring home guilt for offence u/Sec. 498A of ou

IPC, willful act or the conduct of Accused which have direct relation to the death, need to be established. ” C

17. The evidence discussed shows that the evidence is not sufficient to prove the offence punishable under Section 498A h

of IPC. The other probability has created reasonable doubt about ig

the case of the prosecution and so the benefit of doubt must go to the accused. This Court holds that the trial Court has not H

considered the aforesaid circumstances, admissions in proper perspective and so error is committed. When prosecution fails to y

prove the offence of cruelty as defined under Section 498A of IPC, ba

there is no question of drawing presumption which is available under Section 113A of the Evidence Act. For proving of offence punishable under Section 306 of IPC in the case like present one, om

there is necessity to use such presumption. So this Court holds that all the appellants are entitled for benefit of doubt and appeal B

deserves to be allowed.

18. In the result, the appeal is allowed. The judgment and order of trial Court is hereby set aside. All the appellants stand acquitted of all the offences for which the charge was framed and ::: Downloaded on – 09/06/2013 18:58:29 ::: cria216.00

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for which they were tried. Bail bonds of all the appellants stand rt

cancelled. Fine amount, if any recovered from the appellants is to ou

be returned to them.

Sd/-

[ T. V. NALAWADE, J. ]

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