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Shaikh Imams Shaikh Banu vs State Of Mah & Ors on 19 October, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

927 CRIMINAL REVISION APPLICATION NO. 9 OF 2005

Shaikh Imam s/o Shaikh Banu
Age 60 years, Occ. Agriculture
R/o. Golegaon, Tq. Gangapur …Applicant
District Aurangabad (Ori. complainant)

versus

1. The State of Maharashtra

2. Sk. Akil s/o Ajij,
Age 25 years, Occ. Driver,
R/o. Nandgaon, Tq. Vaijapur
District Aurangabad

3. Sk. Ajij s/o Sk. Shahabuddin,
Age 55 years, Occ. Driver
R/o. Nandgaon, Tq. Vaijapur
District Aurangabad

4. Sk. Dadabhai s/o Sk. Shanabuddin,
Age 60 years, Occ. Driver
R/o. Nandgaon, Tq. Vaijapur
District Aurangabad

5. Najmabi w/o Sk. Ajij,
Age 50 years, Occ. Household,
R/o.Nandgaon, Tq. Vaijapur
District Aurangabad

6. Sugrabai w/o Sk. Dadabhai
Age 55 years, Occ. Household …Respondents
R/o. Nandgaon, Tq. Vaijapur (R. Nos. 2 to 6
District Aurangabad Ori. Accused)
…..
Advocate for Applicant : Mr. V A Nimbalkar
APP for Respondent No.1: Mr. P.K. Lakhotiya
Advocate for Respondent Nos. 2 to 6 : Mr. S.D. Hiwrekar
…..

CORAM : V. K. JADHAV, J.

DATED : 19 th OCTOBER, 2018

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ORAL JUDGMENT:-

1. This criminal revision application is preferred by the original

complainant against the judgment and order of acquittal dated

29.10.2004, passed by the Vth Ad-hoc Assistant Sessions Judge,

Aurangabad, in Sessions Case No. 134 of 2004.

2. Brief facts of the prosecution case are as follows:-

The marriage of deceased/Anisa with respondent accused

No.1 had taken place ten months prior to the death of

deceased/Anisa. After the marriage, deceased/Anisa had been to

matrimonial house and started cohabiting with respondent-accused

No.1, who was residing in the joint family. Deceased/Anisa was

treated well initially for a period of six months but thereafter she was

subjected to ill-treatment on account of unlawful demand of

Rs.40,000/- for purchasing of auto rickshaw. Deceased/Anisa had

reported the said demand and ill-treatment being extended to her on

account of non fulfillment of the same to her parents and on

28.3.2004, deceased/Anisa was taken to the Government Hospital,

Vaijapur. After her death in the hospital, the opinion about probable

cause of death of deceased/Anisa was due to respiratory paralysis

attack due to acute chemical poisoning. On the basis of complaint

lodged by the present applicant, crime No. 47 of 2004 came to be

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registered at Vaijapur police station. After completion of

investigation, the concerned investigating officer has submitted

charge sheet before the court for the offences punishable under

Sections 304-B, 306, 498-A r.w.34 of I.P.C. against the respondents-

accused persons. The prosecution has examined in all seven

witnesses to substantiate the charges levelled against the accused

persons. After recording the statements of respondents-accused

under Section 313 of Cr.P.C. and after hearing learned counsel

appearing for the respondents-accused, the learned Vth Ad-hoc

Assistant Sessions Judge, Aurangabad, by judgment and order dated

29.10.2004 acquitted the respondents accused Nos. 1 to 5

(respondent Nos. 2 to 6 herein) for the offences punishable under

Sections 304-B, 306, 498-A r.w. 34 of I.P.C.

3. Learned counsel for the applicant submits that deceased/Anisa

died within 10 months from her marriage. After six months of her

marriage, the respondents accused started demanding Rs.40,000/-

for purchase of auto rickshaw. Deceased/Anisa was subjected to

cruelty on account of non fulfillment of the said demand and in

consequence therefore, under some abnormal circumstances, she

was taken to Government Hospital, Vaijapur where she died.

Learned counsel submits that death of deceased/Anisa, as per the

opinion expressed by the concerned Medical Officer, who has

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conducted the post mortem examination, is otherwise than under the

normal circumstance. Learned counsel for the applicant submits

that P.W.1 is the father, P.W.4 mother and P.W.5 is real brother of

deceased/Anisa, and their evidence is consistent and trustworthy.

These three witnesses have categorically stated that deceased/Anisa

complained them about unlawful demand made by the accused

persons and she was being subjected to ill-treatment on account of

non fulfillment of the said demand. Learned counsel submits that the

prosecution has succeeded in proving the cruelty as defined under

Section 498-A of I.P.C. and as such the presumption under Section

113-A of Evidence Act stands attracted in this case. Deceased/Anisa

died within 10 months from her marriage and the prosecution has

proved cruelty as defined under Section 498-A of I.P.C. Learned

counsel submits that even the trial court has not considered the

consistent evidence of those witnesses and even not given thought

to draw presumption of Section 113-A of Evidence Act, to the facts

and circumstances of the case and erroneously acquitted the

respondents/accused persons.

4. Learned counsel for the respondents-accused persons submits

that as per the allegations made in the complaint and so far as the

prosecution story is concerned, the deceased/Anisa was treated well

for a period of six months after the marriage and thereafter she was

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subjected to ill-treatment on account of non fulfillment of unlawful

demand of Rs.40,000/- for purchase of auto rickshaw. Learned

counsel submits that it is difficult to believe that only for four months

deceased/Anisa was subjected to ill-treatment to such an extent that

she left with no other alternate but to commit suicide. Learned

counsel submits that though the prosecution witnesses have

consistently deposed about unlawful demand, there is no evidence at

all as to the manner in which deceased/Anisa was subjected to

cruelty, as defined under Section 498-A of I.P.C. Learned counsel

submits that the trial court has rightly concluded that it is not dowry

death. So far as the charge under section 306 r.w. 34 of I.P.C. is

concerned, the prosecution has miserably failed to prove the cruelty

as defined under Section 498-A of I.P.C. and as such presumption

under Section 113-A of Evidence Act does not attract. In absence of

any presumption, as contemplated under Section 113-A of Evidence

Act, there is no evidence about abetment to commission of suicide of

deceased/Anisa. Learned counsel submits that even the C.A. report

is silent and concerned Medical Officer, who has conducted the post

mortem examination, has expressed opinion about the cause of

death merely on post mortem appearance or guess work. There is

no Histo – pathological report. Learned counsel submits that the trial

court has rightly acquitted the accused persons. No interference is

required.

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Learned counsel for the respondents-accused in order to

substantiate his submissions, placed reliance on the following

cases:-

I) Indrajit Sureshprasad Bind and others vs. State of Gujarat,

reported in (2013) 14 SCC 678;

ii) Ramu Shankar Wagh vs State of Maharashtra, reported in

2014 ALL MR (Cri.) 1792

6. Learned A.P.P. submits that even if the C.A. report is silent,

there are various reasons like evaporation, vomiting, urine, due to

which poisonous substance may not be found in the viscera, the

concerned doctor, who has conducted the postmortem examination

can very well form his opinion on the basis of post mortem

appearance. Learned A.P.P. submits that there is sufficient evidence

about suicidal death of deceased/Anisa. Learned A.P.P. submits that

there is consistent evidence about unlawful demand.

7. The interference in the order of acquittal passed by the trial

court, is limited only to the following exceptional cases:-

i) order under revision suffers from glaring illegalities,

ii) or has caused miscarriage of justice,

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iii) or when it is found that the trial court has no jurisdiction to
try the case,

iv) or where the trial court has illegally shut the evidence

which otherwise ought to have been considered,

v) or Where the material evidence which clinches the issue
has been overlooked and

vi) where the admissible evidence is wrongly brushed aside
as inadmissible.

8. In the case of Vimal Singh vs. Khuman Singh and another,

reported in AIR 1998 SC 3380, in para 7 of the judgment while

coming to the ambit of power of the High Court under Section 401 of

Cr.P.C., the Supreme Court has made the following observations:-

“7. Coming to the ambit of power of High Court under
Section 401 of the Code, the High Court in its revisional power
does not ordinarily interfere with judgments of acquittal
passed by the trial court unless there has been manifest error
of law or procedure. The interference with the order of
acquittal passed by the trial court is limited only to exceptional
cases when it is found that the order under revision suffers
from glaring illegality or has caused miscarriage of justice or
when it is found that the trial court has no jurisdiction to try the
case or where the trial court has illegally shut out the evidence
which otherwise ought to have been considered or where the
material evidence which clinches the issue has been
overlooked. These are the instances where the High Court
would be justified in interfering with the order of acquittal. Sub-
section (3) of Section 401 mandates that the High Court shall

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not convert a finding of acquittal into one of conviction. Thus,
the High Court would not be justified in substituting an order of
acquittal into one of conviction even if it is convinced that the
accused deserves conviction. No doubt, the High Court in
exercise of its revisional power can set aside an order of
acquittal if it comes within the ambit of exceptional cases
enumerated above, but it cannot convert an order of acquittal
into an order of conviction. The only course left to the High
Court in such exceptional cases is to order retrial. In fact, Sub-
section (3) of Section 401 of the Code forbids the High Court
in converting the order of acquittal into one of conviction. In
view of the limitation on the revisional power of the High
Court, the High Court in the present case committed manifest
illegality in convicting the appellant under Section 304, Part – I
and sentencing him to seven years’ rigorous imprisonment
after setting aside the order of acquittal.”

9. In the instant case, the prosecution evidence is consistent

about unlawful demand of Rs.40,000/- made by the respondents

accused for purchase of auto rickshaw. In terms of clause “b” of

explanation to section 498-A of I.P.C. 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. The demand is required to be

proved by the prosecution. There is no evidence as to manner in

which deceased/Anisa was subjected to ill treatment. In catena of

judgments, the Supreme Court and even this court have held that

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mere demand is not sufficient to constitute or attract the ingredients

of Section 498-A of I.P.C. It has been held consistently that the

harassment is of such a nature to drive the woman to commit suicide.

In the instant case, though the prosecution witnesses have deposed

about the fact of unlawful demand made by the respondents-

accused, there is no reference to any specific instance or manner in

which deceased/Anisa was subjected to ill-treatment. Consequently,

in absence of proof of cruelty as defined under Section 498-A of

I.P.C. presumption under section 113-A of Evidence Act does not

attract. Even if the necessary requirements of Section 113-A of

Evidence Act are fulfilled, the court has to consider the application of

presumption under Section 113-A of Evidence Act, having due regard

to other circumstances. Deceased/Anisa was treated well initially for

a period of six months. There is no evidence as to what happened in

remaining period of four months so as to led her to commit suicide.

So far as the said demand of Rs.40,000/- for purchase of auto

rickshaw is concerned, it has no connection with the marriage.

Learned counsel for the applicant has also accepted the same that it

is not the case of dowry death. So far as the suicidal death is

concerned, there is no reason to interfere in the findings recorded by

the trial court, however, the learned Judge of the trial court has rightly

held that the prosecution has failed to prove the charge as to

abetment for commission of suicide of deceased/Anisa.

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10. In the case of Indrajeet Supreshprasad Bind and others vs.

State of Gujarat (supra) relied upon by learned counsel for the

respondents-accused, the Apex Court in para 9 of the judgment has

made the following observations:-

“9. To establish the offence of dowry death under Section
304-B, IPC the prosecution has to prove beyond reasonable
doubt that the husband or his relative has subjected the
deceased to cruelty or harassment in connection with
demand of dowry soon before her death. Similarly, to
establish the offence under Section 498A, IPC the
prosecution has to prove beyond reasonable doubt that the
husband or his relative has subjected the victim to cruelty as
defined in Clauses (a) and (b) of the Explanation to Section
498A, IPC.

In the present case, the prosecution has not been able to
prove beyond reasonable doubt that the appellants have
subjected the deceased to any cruelty or harassment.
Further, we have noticed from Ext. 31 written by PW 3 to the
deceased on 25-04-2004 that after talking to the deceased
on telephone, he was satisfied that she was living happily
and was not being misbehaved with. No other material
having come in evidence to establish that the appellants
instigated the deceased to commit suicide, it is difficult for the
Court to hold that the appellants had in any way abetted the
suicide by the deceased on 18-05-2004.”

11. In the case of Ramu Shankar Wagh vs. State of

Maharashtra (supra) relied upon by learned counsel for the

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respondents-accused, this court in the given set of facts, which are

almost identical to the present case, held that the cruelty aspect

having not been proved, no question of raising presumption under

Section 113-A of the Evidence Act and in such a case, it is for the

prosecution to establish on the basis of other evidence that accused

had intentionally aided or abetted commission of suicide.

12. In view of above discussion and considering the ratio laid down

by the Apex Court and also similar view expressed by this court in

the case of Ramu Shankar Wagh vs. State of Maharashtra

(supra), I find it difficult to persuade myself for taking any other view

in this matter. I find no fault in the judgment and order of acquittal

passed by the trial court. Hence the following order:-

ORDER

I) Criminal Revision application is hereby dismissed. Rule
discharged.

II) Criminal revision application is disposed of accordingly.

( V. K. JADHAV, J.)

rlj/

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