Kamalkishore Bajranglal Agrawal vs State Of Maharashtra

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                            NAGPUR BENCH, NAGPUR.




                                                                                                      
                      CRI. REVISION APPLICATION NO.11 OF 2005.




                                                                            
    Kamalkishore Bajranglal Agrawal,
    aged about 48 years, Occ.: Business, 




                                                                           
    R/o. Akot, District : Akola. 
                                                                                     ....       APPLICANT
                                                                                                         . 

                                                 // VERSUS //




                                                           
    State of Maharashtra              
    through the P.S.O. of P.S. Gondia
    City, District : Gondia. 
                                     
                                                                                         .... RESPONDENT.
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    Shri Anil S. Mardikar, Advocate for Applicant.
    Smt.R.A.Wasnik, A.P.P. for Respondent.
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                                    CORAM:  R.C.CHAVAN, J.

DATED : DECEMBER 07, 2009.

ORAL JUDGMENT :

1. This revision is directed against appellate judgment of Additional Sessions Judge, Gondia in Criminal Appeal No.8 of 2003, whereby the learned Judge maintained applicant's conviction for the offence punishable under Section 498-A of the Penal Code and sentence of rigorous imprisonment for two years and fine of rupees five hundred, imposed upon him by learned Assistant Sessions Judge, Gondia upon conclusion of Sessions Trial No.50 of 1998.

2. Tragic facts, which led to prosecution and conviction of the applicant are as under :

The applicant was married to victim Seema on 24th February, 1992. Since caste and custom so permitted, on 6th March, 1992 he was taken in adoption by original accused Nos. 2 and 3. There were bickerings, which led to applicant's and Seema's residing separately from adoptive parents some time in the year 1997. The applicant and Seema have a daughter by name Sheekha, who was about five years old at the time of incident. On 12th March, 1998 Seema set herself on fire. She died as a result of injuries sustained by her. On the report by her brother Kailash an offence was registered and investigation commenced. On completion of investigation the police sent a charge sheet to learned Judicial Magistrate First Class, Gondia, who committed the case to the Court of Session. The learned Assistant Sessions Judge, before whom the trial was held, found, upon consideration of the evidence of six witnesses examined by the prosecution, that the prosecution had proved that the applicant had subjected the victim to cruelty or harassment soon before her death. He, therefore, held the applicant guilty for the offence punishable under Section 498-A of the Penal Code and sentenced him as indicated above. He acquitted the applicant of the offence punishable ::: Downloaded on - 09/06/2013 15:23:16 ::: 3 under Section 304-B of the Penal Code and also acquitted the applicant's adoptive parents and mediator of all the offences for which they were tried.

3. Aggrieved by his conviction, the applicant preferred an appeal before the Court of Sessions at Gondia, where the Additional Sessions Judge, by his impugned judgment, dismissed the appeal. Aggrieved thereby the applicant is before this Court.

4. I have heard the learned counsel for the applicant and learned Additional Public Prosecutor for the State. With the help of both the learned counsel I have gone through the evidence on record.

5. P.W. 1 Vishwas Rajnandgaonkar, State Examiner of Questioned Documents, proved that the letters on which the prosecution placed reliance were in handwriting of the victim. There need be no serious dispute about the fact that the letters in question were written by the victim. The learned counsel for the applicant, however, submitted that some of these letters were not posted at all. These letters, therefore, could not have been received in evidence. He submitted that the addressees, to whom other letters were addressed, were not examined ::: Downloaded on - 09/06/2013 15:23:16 ::: 4 and it was not clarified by the prosecution as to how victim's brother, P.W. 3 Kailash, could get those letters. While Kailash stated in his evidence, recorded on 3rd October, 2002 that those letters might have been brought by his brother from Gondia, his brother Shailesh, who was examined as P.W. 5, stated that he did not remember whether he had taken these letters from Gondia or some other place to Raipur. The learned counsel for the applicant, therefore, submitted that the letters could not have been relied on by the prosecution, since they do not come from proper custody and it is not explained as to how Kailash came to be in possession of those letters which were seized in presence of P.W. 2 Gajanan.

6. As rightly submitted by the learned Additional Public Prosecutor, so long as it is proved that the said letters are in the hand-

writing of the victim, the question as to how Kailash came to possess them would be irrelevant. If the victim had written those letters, even if addressee were not examined, the letters could be gone into or find out as to whether they throw any light on the victim's death. Therefore, the contention of the learned counsel for the applicant, based on non-

examination of the addressees, or failure to explain as to how letters came to be in possession of Kailash, has to be rejected.

7. The learned counsel for the applicant next submitted that even the learned trial Judge as well as appellate Judge have not upheld the case of the prosecution that victim was subjected to any cruelty on account of any unlawful demand. The applicant has been held guilty for treating his wife that such cruelty as drove her to commit suicide. The learned counsel pointed out that, even according to the learned trial Judge as well as Sessions Judge, the last of the letters, which have been relied on, is dated 15th April, 1996. The incident itself took place on 12th March, 1998 i.e. almost two years after the last letter was written.

Therefore, he submitted that the letters do not provide any support to the prosecution story that victim was driven to commit suicide on account of ill-treatment suffered by her prior to 15.04.1996.

8. He submitted that there is no causal connection between the alleged ill-treatment, referred to in the letter, and the suicide which occurred two years thereafter. The learned Additional Public Prosecutor submitted that some of the letters are undated the therefore, there is no reason to presume that there was no letter written after 15.04.1996. However, the prosecution cannot take benefit of absence of date on the letters and benefit would go only to the defence. It cannot be presumed that because letters are undated, they were written after 15.04.1996. Therefore, the contention of the learned counsel for ::: Downloaded on - 09/06/2013 15:23:16 ::: 6 the applicant that, the letters do not provide any causal connection between alleged ill-treatment and suicide, has to be accepted.

9. The learned counsel for the applicant next submitted that even if the recitals of the letters are taken at their face value, they would only show that there was some discord between the parties and that the victim was not happy in her married life. Unhappiness in married life, or neglect by husband, cannot be equated to cruelty, which is punishable under Section 498-A of the Penal code. The learned Additional Public Prosecutor submitted that it is not necessary that there must be a physical violence for proving cruelty punishable under Section 498-A of the Penal Code. According to her, even mental harassment or mental torture would be sufficient to bring the case within Section 498-A of the Penal Code. For this purpose she placed reliance on a judgment of the Supreme Court in Pawankumar Vs. State of Haryana, reported at 1998 Cri.L.J. 1144. In that case, the torture or harassment was on account of unlawful demand for dowry. All the same, the principle that even mental torture would qualify as cruelty, would emerge from this judgment. But it has to be shown that it is mental torture or willful conduct of such a nature as was likely to drive the victim to commit suicide. Mere harassment, or conduct which is perceived by the victim as harassment, would not be sufficient.

Therefore, it would be necessary to test the conduct attributed to the accused objectively in order to find whether a person of ordinary prudence would be ::: Downloaded on - 09/06/2013 15:23:16 ::: 7 driven to suicide on account of such conduct. The learned Additional Public Prosecutor submitted that the victim had been subjected to neglect by her husband and even the defence taken by the applicant would show that he is guilty of neglecting his wife.

10. The applicant in his written statement of defence at Exh.133 states that the victim was shocked by the tragic incidents in her parental family and developed abnormal suspicion that she was being subjected to black magic so as to spoil her mentally. He had also stated in his written statement of defence that it was practically impossible to convince the deceased to take medicines as she had doubts about everyone including doctors. The applicant had claimed that in fact he had been torn in the strife between his wife on one side and his adoptive parents on the other side. It was stated in paragraph 4 of the written statement of defence that the victim had became mentally so weak that she used to handover the letters either to wrong persons or used to post the letters to wrong persons. The learned Additional Public Prosecutor submitted that this written statement of defence categorically shows that the victim admits that the victim was, mentally, in a sick state. If that was so, as a husband, it was necessary for the applicant to find out as to why his wife slipped into that stage.

She submitted that the victim would not have become mentally sick for no reason, unless she was subjected to some sort of harassment or ill-treatment, which led her to mentally deteriorated.

11. There can be no doubt that there is substantial force in the contention of the learned Additional Public Prosecutor, but it would not follow that the applicant can be held guilty for willfully subjecting the victim by such a conduct, as led her to mental degradation and eventual suicide. It is known that several persons have suicidal tendencies and several persons go to form opinions about persons or events, which man of ordinary prudence would not form. That does not mean that persons around would be guilty of willful conduct which drives such persons with delusion to suicidal tendencies or to committal of suicide. Therefore, on the basis of written statement of defence of the applicant it could not be stated that the applicant had contributed by his behaviour in the suicide which the victim committed.

12. The learned Additional Public Prosecutor next submitted that P. W.

3 Kailash had stated that the victim had told him on telephone about 4-5 days prior to the incident that it was not possible for the victim to stay at her husband's place and that the people there wanted to kill her. Kailash stated that the victim had requested him to take her back and that he had assured the victim that he would come to Gondia after 4-5 days, but in the meantime, he received message about victim's death. About this telephone call, the evidence is suspicious, because even after receiving such a call, the witness does not seem to have taken any concrete steps. He seems to have taken telephone call as usual complaint from his sister. In any case, even if this telephonic conservation ::: Downloaded on - 09/06/2013 15:23:16 ::: 9 is accepted for its face value, no concrete act or omission is attributed to the applicant and therefore, it would be impermissible to conclude that the victim had committed suicide on account of some willful conduct of which the applicant was guilty.

13. The learned Additional Public Prosecutor submitted that as a husband and as a person in whose custody, or with whom, the victim was residing, it was for the applicant to explain as to why and how she committed suicide. Therefore, according to the learned Additional Public Prosecutor if the telephonic conservation and the letters, which have been proved, are all taken together, it would not be permissible to hold that the Courts below had wrongly come to conclusion that the applicant was guilty of treating the victim with cruelty. She submitted that concurrent findings of facts by two Courts cannot be lightlys disturbed in exercise of revisional jurisdiction of this Court.

According to her, there is no error, apparent on the face of the record in the findings recorded which would require correction in exercise of revisional jurisdiction by this Court. Therefore, she urged that reappreciation of evidence, as is sought to be made by the learned counsel for the applicant, should not be permitted and the judgments of the Courts below should not be disturbed.

14. The question is not one of reappreciation of evidence. In fact, the evidence on record need not be disbelieved. The question is whether from the ::: Downloaded on - 09/06/2013 15:23:16 ::: 10 evidence tendered inference that the victim was treated with cruelty, by the applicant which led her to commit suicide, can be drawn, and on this count it cannot be said that the conclusions drawn by the Courts below are proper or warranted by the evidence tendered. Hence, the findings of the Courts below cannot be sustained. Suspicion, howsoever strong, cannot take place of proof and in this case though it appears that the victim and the applicant had marital discord running over a long period of time, which, even according to the applicant, led to mental degradation of the victim, that in itself cannot justify the conclusion that the victim was subjected to such mental or physical cruelty, by the applicant, as drove her to death.

15. The revision application is, therefore, allowed. Judgment and orders passed by the Courts below, in so far as they hold the applicant guilty for the offence punishable under Section 498-A of the Penal Code and sentence him to rigorous imprisonment for two years and fine of Rs.Five Hundred or in default rigorous imprisonment for eight days, are quashed and set aside.

JUDGE RR..