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Vitthal S/O Sopanrao Kalbande-vs-State Of Maharashtra on 1 December, 2008

Bombay High Court Vitthal S/O Sopanrao Kalbande-vs-State Of Maharashtra on 1 December, 2008
Bench: R. C. Chavan

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

Criminal Appeal No.610 of 2006

Vitthal s/o Sopanrao Kalbande,

aged 24 years,

resident of Belora (kh),

Tahsil Pusad,

District Yavatmal … Appellant (In Jail) Versus

State of Maharashtra,

through its P.S.O. Khandara,

District Yavatmal. … Respondent Shri Anil S. Mardikar, Advocate for Appellant. Shri S.D. Doifode, Additional Public Prosecutor for Respondent. CORAM : R.C. Chavan, J.

Date of Reserving the Judgment : 25-11-2008. Date of Pronouncing the judgment : 1-12-2008 Judgment :

1. This appeal is directed against the appellant’s conviction and sentence of rigorous imprisonment for three years and fine of Rs.500/- or in default RI for six months, for offence punishable 2

under Section 498-A of the Penal Code and RI for ten years with fine of Rs.1,000/- or in default RI for three years on each count for offences punishable under Section 304-B and 306 of the Penal Code.

2. Facts, which led to prosecution and conviction of the appellant, are as under :

Complainant Rajmati’s daughter Kaveri was married to the appellant on 12-2-2005, at which Kaveri’s uncle Uddhav had paid a dowry of Rs.81,000/-. The appellant was allegedly residing jointly with his parents and brothers, who too were co-accused at the trial, but have been acquitted. It was the prosecution case that Kaveri was ill-treated by all the accused on account of her failure to get a sum of Rs.1 lac to secure job for the appellant. On 3-12-2005, Kaveri committed suicide by consuming poison. On a report by Rajmati, on 6-12-2005, an offence was registered and investigation commenced. Investigation revealed that Kaveri had died of poisoning. Statements of witnesses were recorded in course of investigation and upon finding that there was enough 3

material to charghesheet the appellant and his family members, the Investigating Officer filed chargesheet in the Court of Judicial Magistrate First Class, Pusad, who committed the case to the Court of Session.

3. All the accused pleaded not guilty to the charge of offences punishable under Section 498-A, 304-B and 306 of the Penal Code framed by the learned Additional Sessions Judge. Hence, they were put on trial at which the prosecution examined in all four witnesses, namely, PW 1 Rajmati, the complainant, and victim’s mother, PW 2 Uddhav, victim’s uncle, PW 3 Prahlad, victims maternal uncle, and PW 4 API Chavan, the Investigating Officer. The appellant examined himself in his defence, and denied that there was any ill-treatment or any provocation to the victim to make her commit suicide. After considering the evidence tendered, the learned Additional Sessions Judge convicted and sentenced the appellant as mentioned above and acquitted the other three accused tried along with the appellant. Aggrieved thereby, the convict has preferred this appeal. 4

4. I have heard Shri A.S. Mardikar, learned counsel for the appellant, and Shri S.S. Doifode, the learned Additional Public Prosecutor for the State. With the help of both the learned counsel, I have gone through the evidence tendered.

5. The learned counsel for the appellant submitted that the evidence in this case, which comprises of depositions of victim’s uncle, mother and maternal uncle, does not show that any complaint about ill-treatment had been made before the incident occurred. As far as payment of dowry of Rs.81,000/- in cash is concerned, this does not appear to have been paid under any coercion at the time of marriage. In the report Exhibit 25, there is a mention that when the victim had come to parental house at the time of Diwali, she had complained of ill-treatment at the hands of the appellant and others telling her to get a sum of Rs.1 lac for getting the appellant employed.

6. Complainant PW 2 Rajmati had stated in cross-examination that at the time of Diwali festival, a meeting of panchas was called at her house at which all her relations were 5

present and there the victim was persuaded to go back to her matrimonial home. If this was so, it is surprising that such a meeting does not find reference in the report. The report merely shows that all the relations had persuaded the victim to go back to the matrimonial home. The three witnesses examined on behalf of the prosecution do not state that any report was made when the victim complained of ill-treatment at the time of Diwali. Thus the complaint about ill-treatment and demand of Rs.1 lac had surfaced only after the victim’s death.

7. PW 1 Uddhav, victim’s uncle, had stated that he had assured the victim that he would make arrangement of money at the earliest and had started arranging for money by selling crops and also saving from the salary. If this was so, the victim would have normally told her in-laws that their demand was going to be met and so there would be no reason for continuing with the ill- treatment.

8. The learned counsel for the appellant sought to rely on a judgment of the Division Bench of this Court in Atul s/o 6

Atmaram Sawale and others v. State of Maharashtra, reported at 2006 ALL MR (Cri) 1441. In that case too, there was a demand and the victim’s side had promised that the demand would be met. It was, therefore, observed that there would be no reason to ill-treat or torture the victim. It was observed in that case that when a young newly married girl died within a short time of her marriage, natural reaction of the parents would be hostile and exaggerative. The learned counsel for the appellant submitted that same thing seems to have appeared in this case.

9. Apart from the evidence of the uncle, mother and maternal uncle of the victim, there is no evidence to show that the victim had ever been ill-treated.

10. PW 4 Investigating Officer API Chavhan had stated that the statements of neighbours had been recorded, but they were not filed with the chargesheet. The learned counsel for the appellant submitted those statements were not filed because they did not support the prosecution, implying that there was no ill-treatment whatsoever.

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11. The learned Additional Public Prosecutor submitted that the victim was married to the appellant on 12-2-2005. She committed suicide on 3-12-2005, i.e. within 10 months of her marriage. Therefore, the presumptions under Sections 113A and 113B of the Evidence Act would be attracted. Section 113A of the Evidence Act prescribes the presumption as to abetment of suicide by a married woman. For drawing this presumption, it has to be shown that the victim committed suicide within a period of seven years from the date of marriage. This first condition is fulfilled. The Section further requires that the victim’s husband or relatives of husband should have subjected the victim to cruelty. If this is proved, then the Court may presume that suicide had been abetted by the husband or such relatives of the husband. Cruelty for this purpose has the same meaning as under Section 498A of the Penal Code. “Cruelty” means 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 of the woman. It could also be harassment to a woman where such 8

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 learned Additional Public Prosecutor submitted that the very fact that the victim had committed suicide would show that she was subjected to such wilful conduct as would drive her to commit suicide. The learned counsel for the appellant rightly submitted that this would amount to question begging. What the learned Additional Public Prosecutor wants is to draw an inference that the victim was subjected to cruelty because she committed suicide. In that case, the second requirement of Section 113A of the Evidence Act becomes redundant, because it requires the prosecution to prove that the husband or such relative of the husband had subjected the victim to cruelty. Therefore, this cruelty has to be independently proved and there is absolutely no evidence to show that before the victim committed suicide she had been subjected to any conduct which would have provoked her to take the extreme step. 9

12. The learned counsel for the appellant drew my attention to a judgment of the Supreme Court in Ramesh Kumar v. State of Chhattisgarh, reported at (2001) 9 SCC 618, where the Court held in para 12 of the judgment as under :

“… 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 note of caution. Firstly, the presumption is not mandatory; it is only permissible 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 10

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 lease, 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 that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.”

In that case, the victim had committed suicide within a year of marriage by pouring kerosene on her person and setting her on fire. She had written a suicide note in her diary. There was also a letter written by the victim in which she had complained of 11

ill-treatment. In spite of this, the Apex Court set aside the conviction of the appellant for offence punishable under Section 306 of the Penal Code maintaining conviction under Section 498A of the Penal Code because there was evidence of cruelty. The learned counsel for the appellant, therefore, submitted that for applying presumption under Section 113A of the Evidence Act, cruelty has to have a proximate link with the suicide. This has also been held in Kishori Lal v. State of M.P., reported at 2007 All MR (Cri) 2147 (SC) on which the learned counsel for the appellant placed reliance.

13. The learned Additional Public Prosecutor next submitted that presumption under Section 113B of the Evidence Act is also attracted to the facts of the case. Section 113B of the Evidence Act provides that when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had 12

caused the dowry death. It further provides that the word “dowry death” has the same meaning as in Section 304B of the Penal Code. Section 304B of the Penal Code provides that when death of woman is caused otherwise than in normal circumstances within seven years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment for, or in connection with, any demand for dowry, such death shall be called dowry death. It further provides that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act. The definition of “dowry” in Section 2 of the Dowry Prohibition Act requires that the that the property or valuable security has to be given in connection with marriage of the said parties. In this case, even if the prosecution case is accepted as it is, the demand of Rs.1 lac was not in connection with the marriage of the parties, but in order to secure a job for the appellant. Therefore, the demand is not in respect of dowry. In any case, there is nothing to show that the victim was subjected to cruelty soon before her death as is required to be proved for the purpose of convicting a 13

person of offence punishable under Section 304B of the Penal Code.

14. The learned Additional Public Prosecutor may be right in submitting that the fact remains that the victim had committed suicide and the fact also remains that the victim’s relations had deposed that the victim had stated to them when she came for Diwali festival that she had been ill-treated. Therefore, though the link between the ill-treatment and suicide may not have been established, since the victim would not have given up life for nothing, it could be held that she had been subjected to cruelty. Therefore, according to the learned Additional Public Prosecutor, offence punishable under Section 498A of the Penal Code is decidedly made out.

15. The learned counsel for the appellant submitted that as held by this Court in Atul Atmaram Sawale’s case, referred to above, exaggerations by the victim’s relations may be ignored and, therefore, even this offence may not be held as proved. Though the suicide by the victim is inexplicable, since the allegations of 14

cruelty had surfaced only after the victim’s death, it would be difficult to hold that the victim had been subjected to cruelty when such allegations do not receive any corroboration from the neighbours or other independent sources. The possibility that the victim committed suicide for some other reason known only to herself and that the allegations of cruelty were levelled only because of her death cannot be ruled out. The learned counsel for the appellant also pointed out that the allegations made against the appellant as well as the other accused persons, who were tried along with him, are of a general nature and are similarly worded. In these circumstances, since the other three accused have been acquitted and their acquittal has not been challenged by the State, the appellant’s conviction only because he happens to be the husband is unsustainable.

16. The learned Additional Public Prosecutor submitted that as a husband, the appellant was supposed to protect his wife and, therefore, the learned Trial Judge may have convicted the appellant. Sentiments apart, there has to be some evidence to 15

show that the appellant had subjected the victim to cruelty, which led her to commit suicide in order to sustain his conviction.

17. In view of this, the appeal is allowed. The conviction of the appellant for offences punishable under Sections 498-A, 304-B and 306 of the Penal Code and sentence of rigorous imprisonment for three years and fine of Rs.500/- or in default RI for six months, for offence punishable under Section 498-A of the Penal Code and RI for ten years with fine of Rs.1,000 or in default RI for three years on each count for offences punishable under Section 304-B and 306 of the Penal Code is set aside. He shall be set at liberty forthwith if not wanted in any other case.

JUDGE

Lanjewar

Main – Page

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