296.01appeal
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 296 OF 2001
The State of Maharashtra,
Through the Police Station Mukhed,
At the instance of one
Tukaram S/o Sakharam Pohare,
Age : 50 years, Occu : Agri.,
R/o : Pimpri (Mahipal),
Tq. Dist. Nanded.
…APPELLANT
VERSUS
1. Govardhan Vithal Govande,
Age : 23 years,
2. Gayabai Prayagbai Ramji Buktane,
Age : 35 years,
3. Satwabai Vithal Govande,
Age : 40 Yrs., (died)
All residents of Shemboli,
Tq. Dist. Nanded.
4. Sow. Ambubai @ Gayabai Gangadhar
Sadavarte, Age : 30 years,
R/o : Dhotra, Tq. Purna,
District Parbhani
…RESPONDENTS
…
Mr. R.V. Dasalkar, APP for appellant/State.
Mr. Anil M. Gaikwad, advocate for respondent nos.1 and 2.
Respondent no.3 – died., Respondent no.4 – served.
…
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
2
DATE OF RESERVING JUDGMENT : 3rd July,2017.
DATE OF PRONOUNCING JUDGMENT: 20th July, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
This appeal is directed against the
judgment and order dated 6th April, 2001, passed by
the IInd Assistant Sessions Judge, Nanded in
Sessions Case No. 188 of 1996, thereby acquitting
respondent nos.1 to 4 (original accused nos. 1 to
4) from the offence punishable under Sections
498-A, 304-B and 306 read with 34 of the Indian
Penal Code (for short “I.P. Code”).
2. The prosecution case in nut-shell, is as
under:-
A) The marriage of Phulwantabai (now
deceased), who is daughter of informant – Tukaram
Pohare (PW-3), was solemnized with accused no.1
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
3
on 1st May, 1993. At the time of marriage, dowry of
Rs.15,000/-, a gold ring and utensils and other
necessary household items were given by Tukaram
(PW-3). After marriage, she started cohabiting
with accused no.1 – Govardhan. Accused nos. 2 to
4 were also residing with accused no.1. Accused
no.3 was the step-mother of accused no.1. The
accused persons treated her well for about one
year and thereafter, accused no.3 started teasing
Phulwantabai and accused no.1 started beating her.
Accused no.1 was also insisting her to bring the
amount for purchasing costly household items from
her father. Because of such ill-treatment,
Phulwantabai was brought by her father to his
house and she stayed there for about six months.
However, thereafter accused no.1 along with four
persons had gone to the house of father of an
informant and had given assurance that, accused
no.1 – Govardhan will treat Phulwantabai well.
Therefore, on the assurance given by accused no.1,
he sent Phulwantabai for cohabitation.
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
4
Thereafter, Tukaram (PW-3) and the maternal uncle,
Narayan Sawant (PW-9) went to fetch Phulwantabai,
so also to take her to the house of Tukaram at the
time of Panchami festival, but the accused did not
send her.
(B) Thereafter, Tukaram (PW-3) got knowledge
about the ill-treatment meted out to Phulwantabai.
Therefore, on 2nd September, 1996, her elder
brother – Raosaheb Tukaram Pohare (PW-5), went to
meet Phulwantabai and accused no.1, Tukaram (PW-3)
also persuaded accused no.1 and requested not to
give illtreatment to Phulwantabai. However, within
couple of days thereafter on 5th September, 1996,
Tukaram (PW-3) received information about the
death of Phulwantabai.
(C) Upon receiving such information, Tukaram
Pohare (PW-3) and his son Raosaheb along with
other villagers went to village Shemboli, where
the accused were residing. While going to village
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
5
Shemboli, first they went to the hospital at
Barad. It was told to them that, Phulwantabai was
taken to Nanded, as the doctor was not available
there. Then Tukaram Pohare went to Police
Station, Mudkhed, where he was informed about the
death of Phulwantabai, and that, the dead body was
sent to Shemboli after post-mortem. Raosaheb and
Tukaram then lodged the report in Police Station,
Mudkhed. Then they went to village Shemboli.
They found that accused no.1 was not there.
Therefore, they carried dead body of Phulwantabai
to their home at village Mahipal Pimpri. On the
next day i.e. on 6th September, 1996, the funeral
has taken place.
(D) Thereafter, Police started investigation,
collected necessary documents, recorded statements
of the witnesses, and after completion of
investigation filed the charge-sheet in the Court
of Judicial Magistrate First Class, Nanded. The
Judicial Magistrate First Class, Nanded committed
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
6
the case to the Court of Sessions, as the offence
is exclusively triable by the Court of Sessions.
(E) The Sessions Court framed the charge
against the accused persons under Sections 498-A,
306, 304-B read with 34 of the I.P. Code. The same
was read over to the accused and the accused
persons pleaded not guilty and claimed to be
tried.
(F) The defence of the accused, as gathered
from the statement recorded under Section 313 of
the Code of Criminal Procedure (for short
“Cr.P.C.”) is that, the dowry was paid voluntarily
by the father of deceased Phulwantabai. On the
date of incident, Phulwantabai got annoyed because
accused no.1 scolded her, as the ration card was
not traced out, which was given in her custody.
Because of such scolding, she consumed poison and
committed suicide. The accused denied that, they
demanded any item or dowry from the parents of
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
7
Phulwantabai and also she was subjected to
illtreatment. During pendency of the trial,
accused no.3 the step-mother of accused no.1,
expired and the prosecution against her was
abated.
3. After recording the evidence and
conducting full fledged trial, the trial Court
acquitted all the accused for the offence
punishable under Sections 498-A, 304-B, 306 read
with 34 of the I.P. Code. Hence this Appeal by the
State.
4. Learned A.P.P. appearing for the State
submits that, the prosecution examined the father,
mother, brothers and other witnesses so as to
prove the charge framed against the accused for
the offence punishable under section 498-A of the
I.P. Code. It is submitted that, all the witnesses
have stated about the ill-treatment and harassment
given by the accused to deceased Phulwantabai. Her
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
8
death was within seven years from the marriage.
The medical evidence also supports the prosecution
case, and therefore, the view taken by the trial
Court of acquittal of the respondents was not
possible. Therefore, he submits that, the appeal
deserves to be allowed.
5. On the other hand, the learned counsel
appearing for the respondents i.e. original
accused submits that, the evidence of the
prosecution witnesses is inconsistent. Prior to
the alleged incident, for six months deceased
Phulwantabai stayed in her parents house. He
invites our attention to the findings recorded by
the trial Court and submits that, those are in
consonance with the evidence brought on record and
the view taken by the trial Court is possible. The
learned counsel appearing for the respondents
placed reliance on the exposition of law by the
Supreme Court in the cases of Rajinder Singh V/s
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
9
State of Punjab1, Major Singh and Anr. V. State of
Punjab2 and Maya Devi and Anr. V. State of
Haryana3, and submits that, the appeal filed by the
State may be dismissed.
6. We have given careful consideration to
the submissions advanced by the learned A.P.P.
appearing for the State and the learned counsel
appearing for the respondents (original accused
nos.1 to 4). With their able assistance, we have
carefully perused and scrutinized the entire notes
of evidence brought on record by the prosecution.
7. It appears that, initially the trial
Court framed the charge for the offences
punishable under Sections 498-A read with 34 and
Section 306 read with 34 of the I.P. Code,
however, the additional charge was framed for the
offence punishable under Section 304-B read with
1 2015 AIR (SC) 1359
2 AIR 2015 SC 2081
3 AIR 2016 SC 125
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
10
34 of the I.P. Code. It appears that, the
panchanama of scene of offence, post-mortem
examination notes, Chemical Analyzer’s report,
viscera of Phulwantabai was found having teaces of
insecticide called “Endosulfan”, death of
Phulwantabai, marriage solemnized on 1st May, 1993,
death occurred within seven years and also
Rs.15,000/- was given by the parents of
Phulwantabai at the time of marriage have been
admitted by the respondents. However, the real
question is who was an author of death of
Phulwantabai. In order to prove charge against the
respondents/accused, the prosecution examined,
Dr. Rajendra Nivruttirao Kagne, the Medical
Officer (PW-2), who opined the final cause of
death as poisoning and the nature of poison was
Endosulfan. He also stated details about the
injuries on the person of Phulwantabai. He stated
that, those injuries are ante-mortem.
During his cross-examination, he stated
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
11
that, immediate death is not possible due to the
poison detected in the body of Phulwantabai. After
having insecticide the patient gets convulsions.
He further stated that, if such patient is carried
on a motor cycle by two other persons and if left
leg of such patient touches the motor cycle while
having convulsions the injuries as stated by him
in column no.17 are possible.
8. The prosecution examined Tukaram Sakharam
Pohare (PW-3), father of Phulwantabai. He stated
details of solemnization of marriage of
Phulwantabai with accused no.1 – Govardhan. He
stated that, at the time of marriage, he paid
dowry of Rs.15,000/- and also household articles
such as utensils and cot and also the expenses of
marriage were also borne by him. Phulwantabai was
treated well for one year after the marriage. He
further stated that, the husband i.e. accused no.1
used to beat her and other accused gave
illtreatment and harassment to her. He further
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
12
stated that, he wanted to take Phulwantabai to his
house for festival of Panchami, however she was
not sent by the accused. On the occasion of
Rakhipournima his son Raosaheb went to the house
of the accused and persuaded to sent Phulwantabai
to his house and thereafter after four days he
received information about death of Phulwantabai.
Then he went to Police Station, lodged the first
information report and then he went to village
Shemboli. He noticed the injuries on both legs and
hands of Phulwantabai. He took dead body to his
village and the same was cremated on the next day.
None of the accused attended the cremation.
During his cross-examination, he admitted
that, accused no.2 – Gayabai and accused no.4
Ambubai are the sisters of accused no.1. Accused
no.2 – Gayabai is widow and is residing at
Pawadewadi. He further stated that, accused no.4 –
Ambubai was married with a person from village
Dhotra, Tq. Purna and after marriage she begotten
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
13
children. He also admitted that, accused no.3-
Satwabai owned the agricultural land and was
earning through the said agricultural cultivation
for livelihood. It appears that, the grievance
against accused no.3 was that, she used to ask to
do household work as well as the agricultural work
in the fields. He specifically admitted that,
before death, Phulwantabai was residing with him
for a period of six to seven months. He further
stated that, persons namely Ramji Vithal Govande,
Mahadu Laxman Govande, Mahadu Bhajoji Suryatale
and Tukaram Mahadu had come to his house. He had
talk with them. They assured him that,
Phulwantabai would not be asked to do the labour
work in the fields. Thereafter, Phulwantabai was
sent for cohabitation with them. Thereafter he
went to the house of the accused once or twice. He
after talking to his daughter returned to his
house. He further stated that, Phulwantabai
cohabited for four years with accused no.1. Since
his financial position is sound and Phulwantabai
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
14
being the only daughter, he provided all things as
per his capacity before her demand. He paid
Rs.15,000/-, fan, cot and ring to accused no.1 on
his own. On the occasion of marriage of brother of
Phulwantabai accused no. 1 offered clothes to him
and after marriage accused no.1 left the place of
marriage with Phulwantabai. He stated that, though
accused no.1 was jobless at the relevant time, he
decided to fix the marital ties of Phulwantabai
with accused no.1. He did not ask about her wish.
She stated her wish voluntarily. The suggestion
was also given that, Phulwantabai wanted to reside
at Nanded, however, he denied the said suggestion.
He stated before the Court that, accused no.1 was
not present at Shemboli, however, the said fact
was told by him to the Police while lodging the
first information report. He further stated that,
the marriage of Phulwantabai was arranged with
accused no.1 after her consent. She was never
unhappy with accused no.1. He stated that, even
though on many occasions, he asked her not to go
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
15
with accused no.1, she used to go with him no
sooner he used to come to fetch her. He stated
that, as Phulwantabai expired suddenly, he had to
lodge the report.
9. Thus, upon careful perusal of the
evidence of Tukaram (PW-3), it clearly emerges on
record that, prior to date of incident for six
months Phulwantabai stayed in his house, accused
persuaded him to send Phulwantabai to their house
and accordingly, she was sent to the house of the
accused. He also stated that, after one and half
year of marriage of accused no.1 with
Phulwantabai, they attended the marriage of his
son and also offered clothes to him and his
family. He used to visit the house of the accused.
Accused no.3 – Satwabai had sufficient source of
income. The accused also assured that,
Phulwantabai will not be sent for agricultural
work. On his own, he gave Rs.15,000/-, fan, cot
and household articles to Phulwantabai since she
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
16
was his only daughter. The marriage of
Phulwantabai was arranged with accused no.1 after
her consent. She was never unhappy with accused
no.1. Even though on many occasions, PW-3 asked
her not to go with accused no.1, she used to go
with him no sooner he used to come to fetch her.
Therefore, aforementioned version from
the evidence of Tukaram (PW-3) that, Phulwantabai
was never unhappy with accused no.1 – Govardhan
and also other admissions given by him in his
evidence clearly show that, there was no
illtreatment or harassment as alleged and which
would attract ingredients of Section 498-A of the
I.P. Code.
10. The prosecution has examined Gandarbai
Tukaram Pohare (PW-4), who is mother of
Phulwantabai. It appears that, this witness has
improved the story regarding ill-treatment. She
deposed that, accused nos.2 and 3 used to ill-
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
17
treat Phulwantabai as no child was begotten to
Phulwantabai. This is the improvements in her
evidence as PW-3 in his evidence did not state
about this fact. She in her evidence stated that,
accused no.1 had attended the marriage of Raosaheb
and Babasaheb solemnized after one year of the
marriage of Phulwantabai. At that time, accused
no.1 showed dis-pleasure as he was not presented
gold finger ring. She stated that, accused no.1
used to beat Phulwantabai for a TV-set and that,
once she had paid amount of Rs.5,000/- behind the
back of her husband to Phulwantabai. She also
stated that, the accused no.1 used to illtreat
Phulwantabai for bringing motor-cycle. All these
facts which are stated by PW-4 are by way of
omissions. The said facts have not been stated by
the PW-3 in his evidence.
However, in cross-examination, she has
admitted that, Phulwatabai was asked to stay with
him for six month. She also admitted in her cross-
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
18
examination that, the amount of dowry of
Rs.15,000/-, cloths and other articles were given
to Phulwantabai happily. She also admitted that,
they did not wait for demand from the accused, and
before any demand from the accused, they provided
all aforementioned things. So also, when a
specific question was asked to PW-4 – Gandharbai
that, Phulwantabai was not in a position to
tolerate anything against her wish she kept mum
and did not answer the question. However, the
brothers of Phulwantabai, i.e. Raosaheb (PW-5) and
Babasaheb (PW-6) admitted that, Phulwantabai was
not in a position to tolerate anything against her
wish.
11. The prosecution has also examined
Raosaheb Tukaram Pohare (PW-5), the brother of
deceased Phulwantabai. He in his deposition stated
about the illtreatement meted out to Phulwantabai
at the hands of accused persons. He stated that,
for festivals Phulwantabai used to come to their
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
19
house and used to tell about the illtreatment
occasionally. He stated that, in the marriage of
this witness and his brother, accused no.1 offered
clothes. He stated that, before six months of
incident, Phulwantabai resided with them in the
parents house.
However, in cross-examination, he
admitted that, he has only signed the report
without knowing the contents therein. He admitted
that, Phulwantabai was asked to stay at their
house by the parents and not that Phulwantabai
came voluntarily. He stated that, he did not state
while recording the statement by the police that,
accused used to demand motor cycle or TV set for
sending Phulwantabai, however, he did not state
the reason why the said fact is appearing in the
statement before police.
12. The prosecution has examined Babasaheb
Tukaram Pohare (PW-6), the brother of
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
20
Phulwantabai. In his evidence, he stated that,
Phulwantabai was married with accused no.1. At the
time of marriage dowry of Rs.15,000/- and a gold
ring was given to accused no.1. After marriage
Phulwantabai went to cohabit with accused no.1 at
village Shemboli. He thereafter stated about the
illtreatment meted out by Phulwantabai and the
demands made by the accused persons. This witness
also improved the story of ill-treatment by
stating that, Phulwantabai was ill-treated as
there was no `Bolwan”, but his statement is silent
about it.
During his cross-examination, he stated
that, his parents brought Phulwantabai to stay
with them for a period of six months. He denied
that, before the demand of Phulwantabai they
provided her all articles. He admitted that, the
Bolwan was made by his parents. He admitted that,
as per the wish of his sister, her marriage was
solemnized with accused no.1. He admitted that,
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
21
his sister was sensitive like him. The suggestion
was given to him that, he was deposing falsely
about demand of motor cycle, however, he denied
the said suggestion.
From perusal of the evidence of this
witness, it is clear that, he in his examination-
in-chief stated that, Phulwantabai was illtreated
as there was no `Bolwan’ however, in cross-
examination, he totally gave go by to the said
version stating that, Bolwan was made by his
parents. Thus, this admission disproved the story
of ill-treatment on the ground of Bolwan.
From perusal of the evidence of PW-3,
PW-4, PW-5 and PW-6, it is clear that, there are
several omissions and contradictions in their
evidence.
13. The prosecution examined Namdeo Sakharam
Pohare (PW-8), who in his evidence stated that,
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
22
Phulwantabai was the daughter of his real brother.
She was married with accused no.1 on 1 st May, 1993.
At the time of marriage dowry of Rs.15,000/-, a
locket and clothes were offered to accused no.1.
Thereafter, he stated about the illtreatment which
has been meted out to Phulwantabai at the hands of
the accused. He stated that, accused no.1
prohibited Phulwantabai from coming to their
village. He also demanded motor cycle. Thereafter
he gave details of death of Phulwantabai and the
cremation. He also improved his evidence by
stating that, whenever, Phulwantabai came to their
village, she used to tell about the illtreatment
to her parents. However, it appears that, while
recording the police statement, he did not state
all these aspects. So also Vaijnath Gopalrao
Paralikar, Investigating Officer (PW-10) was
confronted with the said facts, he in his
deposition stated that, he did not state about
such facts as mentioned in examination-in-chief
while recording the statement.
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
23
14. The prosecution examined Narayan Sambhaji
Sawant (PW-9), who in his deposition has improved
his statement, stating that, when he had gone to
fetch Phulwantabai, accused no.1 assaulted
Phulwantabai in his presence by a pipe. He was
demanding Hero Honda motor cycle. But in second
breath, he admitted that, Goverdhan did not
assault in his presence and he only saw the marks
of assault on the person of Phulawabai. So also
all these facts have not been appearing in the
evidence of PW-3, PW-4, PW-5 and also PW-7.
Therefore, this version of PW-9 is improved
version.
15. Upon considering the evidence of all the
prosecution witnesses in its entirety, the trial
Court found that, the same suffers from inherent
omissions, contradictions and improvements. There
is no evidence on record to show that,
Phulwantabai was subjected to illtreatment and
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
24
harassment by the hands of the accused.
16. The prosecution has not brought on record
the cogent, convincing and sufficient evidence to
connect the accused with an alleged incident of
consuming poison by Phulwantabai. In absence of
any evidence brought on record that, the accused
in furtherance of their common intention subjected
Phulwantabai to cruelty and thereby abetted to
commit suicide and further caused dowry death, we
are unable to persuade ourself to cause
interference in the impugned judgment and order of
acquittal of the respondents.
17. The Hon’ble Supreme Court had occasion to
consider the scope and ambit of Section 304-B of
the I.P. Code in the case of Satvir Singh and
others vs. State of Punjab and another4. In Para 14
of the Judgment, it is held that :-
4 (2001) 8 S.C.C. 633
::: Uploaded on – 20/07/2017 ::: Downloaded on – 22/07/2017 00:23:40 :::
296.01appeal
25
“14. The essential components of Section
304-B are: (i) Death of a woman occurring
otherwise than under normal circumstances,
within 7 years of marriage. (ii) Soon
before her death she should have been
subjected to cruelty and harassment in
connection with any demand for dowry. When
the above ingredients are fulfilled, the
husband or his relative, who subjected her
to such cruelty or harassment, can be
presumed to be guilty of offence under
Section 304-B. To be within the province of
the first ingredient the provision
stipulates that “where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstance”. It may appear that the
former limb which is described by the words
“death caused by burns or bodily injury” is
a redundance because such death would also
fall within the wider province of “death
caused otherwise than under normal
circumstances”. The former limb was
inserted for highlighting that by no means
death caused by burns or bodily injury
should be treated as falling outside the
ambit of the offence.”
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
26
18. The Supreme Court in the case of Rajinder
Singh V/s State of Punjab (supra) while explaining
scope, ambit and purport of Section 304-B of I.P.
Code vis-a-vis Section 113-B of the Evidence Act
in para 23 held thus :-
“23. We endorse what has been said by these
two decisions. Days or months are not what is
to be seen. What must be borne in mind is
that the word “soon” does not mean
“immediate”. A fair and pragmatic
construction keeping in mind the great social
evil that has led to the enactment of Section
304B would make it clear that the expression
is a relative expression. Time lags may
differ from case to case. All that is
necessary is that the demand of dowry should
not be stale but should be the continuing
cause for the death of the married woman
under Section 304B.”
19. The Supreme Court, in recent Judgment in
the case of Heera Lal and another vs. State of
Rajasthan (Criminal Appeal No.790 of 2017) decided
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
27
on 24th April, 2017, in Para 6 to 10 held thus:
“6. Having heard the learned
counsel appearing for the parties and
having gone through the evidence, we
are of the opinion that Section 113A of
the Indian Evidence Act requires three
ingredients to be satisfied before it
can be applied i.e. (i) that a woman
has committed suicide, (ii) such
suicide has been committed within a
period of seven years from the date of
her marriage and (iii) the husband or
his relatives who are charged had
subjected her to cruelty.
7. This Court in an illuminating
Judgment in Ramesh Kumar vs. State of
Chhattisgarh (2001) 9 SCC 618 has
stated the law as follows:-
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
28“This provision was introduced by the
Criminal Law (Second) Amendment Act, 1983
with effect from 26-12-1983 to meet a
social demand to resolve difficulty of
proof where helpless married women were
eliminated by being forced to commit
suicide by the husband or in-laws and
incriminating evidence was usually
available within the four corners of the
matrimonial home and hence was not
available to anyone outside the occupants
of the house. However, still it cannot be
lost sight of that the presumption is
intended to operate against the accused in
the field of criminal law. Before the
presumption may be raised, the foundation
thereof must exist. A bare reading of
Section 113-A shows that to attract
applicability of Section 113-A, it must be
shown that (i) the woman has committed
suicide, (ii) such suicide has been
committed within a period of seven years
from the date of her marriage, (iii) the
husband or his relatives, who are charged
had subjected her to cruelty. On existence
and availability of the abovesaid
circumstances, the Court may presume that
such suicide had been abetted by her
husband or by such relatives of her
husband. Parliament has chosen to sound a::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
29note of caution. Firstly, the presumption
is not mandatory; it is only permissive as
the employment of expression “may presume”
suggests. Secondly, the existence and
availability of the abovesaid three
circumstances shall not, like a formula,
enable the presumption being drawn; before
the presumption may be drawn the court
shall have to have regard to “all the other
circumstances of the case”. A consideration
of all the other circumstances of the case
may strengthen the presumption or may
dictate the conscience of the court to
abstain from drawing the presumption. The
expression – “the other circumstances of
the case” used in Section 113-A suggests
the need to reach a cause – and – effect.
Relationship between the cruelty and the
suicide for the purpose of raising a
presumption. Last but not the least, the
presumption is not an irrebuttable one. In
spite of a presumption having been raised
the evidence adduced in defence or the
facts and circumstances otherwise available
on record may destroy the presumption. The
phrase “may presume” used in Section 113-A
is defined in Section 4 of the Evidence
Act, which says – “Whenever it is provided
by this Act the court may presume a fact,
it may either regard such fact as proved,::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
30unless and until it is disproved, or may
call for proof of it.”
8. We find that having absolved the
appellants of the charge of cruelty, which
is the most basic ingredient for the
offence made out under Section 498A, the
third ingredient for application of Section
113A is missing, namely, that the relatives
i.e., the mother-in-law and father-in-law
who are charged under Section 306 had
subjected the victim to cruelty. No doubt,
in the facts of this case, it has been
concurrently found that the in-laws did
harass her, but harassment is something of
a lesser degree than cruelty. Also, we find
on the facts, taken as a whole, that
assuming the presumption under Section 113A
would apply, it has been fully rebutted,
for the reason that there is no link or
intention on the part of the in-laws to
assist the victim to commit suicide.
9. In the absence of this vital link, the
mere fact that there is a finding of
harassment would not lead to the conclusion
that there is “abetment of suicide”.
10. On the facts, therefore, we find,
especially in view of the fact that the::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
31appellants have been acquitted for the
crime under Section 498 A of the Code, that
abetment of suicide under Section 306 is
not made out.”
20. Therefore, in the light of discussion
hereinabove, we are of the opinion that, the
prosecution utterly failed to bring on record
sufficient, cogent and convincing evidence on
record and therefore, the trial Court has rightly
granted benefit of doubt in favour of the
respondents/accused. The Supreme Court in the case
of Muralidhar alias Gidda and another Vs. State of
Karnataka5 in para 12 held thus:-
12. The approach of the appellate
Court in the appeal against acquittal
has been dealt with by this Court in
Tulsiram Kanu Vs.State, AIR 1954 SC 1,
Madan Mohan Singh Vs. State of U.P., AIR
1954 SC 637, Atley Vs. State of U.P.,
AIR 1955 SC 807, Aher Raja Khima Vs.
State of Saurashtra, AIR 1956 SC 217,
Balbir Singh Vs. State of Punjab, AIR
5. 2014 [4] Mh.L.J.[Cri.] 353
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
32
1957 SC 216, M.G.Agarwal Vs. State of
Maharashtra, AIR 1963 SC 200, Noor Khan
Vs. State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs. State of Bihar, [1970]
2 SCC 450, Shivaji Sahabrao Bobade Vs.
State of Maharashtra, [1973] 2 SCC 793,
Lekha Yadav Vs. State of Bihar, [1973] 2
SCC 424, Khem Karan Vs. State of U.P.,
[1974] 4 SCC 603, Bishan Singh Vs. State
of Punjab, [1974] 3 SCC 288, Umedbhai
Jadavbhai Vs. Sate of Gujarat, [1978] 1
SCC 228, K.Gopal Reddy Vs. State of
A.P., [1979] 1 SCC 355, Tota Singh Vs.
State of Punjab, [1987] 2 SCC 529, Ram
Kumar Vs. State of Haryana, 1995 Supp
[1] SCC 248, Madan Lal Vs. State of J
K, [1997] 7 SCC 677, Sambasivan Vs.
State of Kerala, [1998] 5 SCC 412,
Bhagwan Singh Vs. State of M.P. [2002] 4
SCC 85, Harijana Thirupala Vs. Public
Prosecutor, High Court of A.P., [2002] 6
SCC 470, C. Antony Vs. K.G.Raghavan
Nair, [2003] 1 SCC 1, State of Karnataka
Vs. K.Gopalakrishna, [2005] 9 SCC 291,
State of Goa Vs. Sanjay Thakran, [2007]
3 SCC 755 and Chandrappa Vs. State of
Karnataka, [2007] 4 SCC 415. It is not
necessary to deal with these cases
individually. Suffice it to say that
this Court has consistently held that in
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
33
dealing with appeals against acquittal,
the appellate Court must bear in mind
the following: (i) There is presumption
of innocence in favour of an accused
person and such presumption is
strengthened by the order of acquittal
passed in his favour by the trial court,
(ii) The accused person is entitled to
the benefit of reasonable doubt when it
deals with the merit of the appeal
against acquittal, (iii) Though, the
powers of the appellate Court in
considering the appeals against
acquittal are as
extensive as its powers
in appeals against convictions but the
appellate Court is generally loath in
disturbing the finding of fact recorded
by the trial court. It is so because the
trial Court had an advantage of seeing
the demeanor of the witnesses. If the
trial court takes a reasonable view of
the facts of the case, interference by
the appellate Court with the judgment of
acquittal is not justified. Unless, the
conclusions reached by the trial court
are palpably wrong or based on erroneous
view of the law or if such conclusions
are allowed to stand, they are likely to
result in grave injustice, the
reluctance on the part of the appellate
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
296.01appeal
34
Court in interfering with such
conclusions is fully justified; and (iv)
Merely because the appellate Court on
re-appreciation and re-evaluation of the
evidence is inclined to take a different
view, interference with the judgment of
acquittal is not justified if the view
taken by the trial
Court is a possible
view. The evenly balanced views of the
evidence must not result in the
interference by the appellate Court in
the judgment of the trial Court.
[Underlines supplied]
21. In the result, the Appeal filed by the
State shall fail and accordingly, the same stands
dismissed. The bail bonds of the
respondents/accused, if any, shall stand
cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
SGA
::: Uploaded on – 20/07/2017 22/07/2017 00:23:40 :::
