1 apeal42of06
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 42 OF 2006
Sushilabai w/o. Mohanlal Verma,
aged 42 Years,
Occupation Household,
resident of Ashtabhuja Ward,
By-pass road, Chandrapur .... APPELLANT
VERSUS
The State of Maharashtra,
through its Police Station Officer,
Ramnagar, Chandrapur. .... RESPONDENT
______________________________________________________________
Miss. A.M. Kshirsagar h/f Mr. Anil S. Mardikar, Senior Advocate for
appellant.
Mr. N.B. Jawade, Addl. Public Prosecutor for respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT :06 OCTOBER, 2017 th DATE OF PRONOUNCING THE JUDGMENT :09 OCTOBER, 2017 th ORAL JUDGMENT :
The appellant faced trial alongwith Mohanlal Verma, Buddhavilas Verma and Asha Mohanlal Verma (the husband, son and daughter of the appellant) for offence punishable under section 304-B and 498-A of Indian Penal Code ("IPC" for short). By judgment and order dated 21.1.2006 in Sessions Case 4 of 2003 the learned 5 th Adhoc ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 2 apeal42of06 Additional Sessions Judge was pleased to convict the appellant (hereinafter referred to as "the accused" ) of offences punishable under section 306 and 498-A of IPC and to award the sentence of rigorous imprisonment for 5 years and payment of fine of Rs. 2,000/-. The other accused were acquitted.
2 The accused, who is challenging the conviction, is the mother in law of the deceased Laxmi who concededly committed suicide on 21.8.2002 by setting herself afire. 3 The marriage of Buddhavilas, the son of the accused, and the deceased Laxmi was solemnized on 10.2.1999. The case of the prosecution as unfolded during the trial is that on the occasion of the marriage, Buddhavilas was gifted cash of Rs. 50,000/-, one she buffalo, one television, bedding and other utensils. Laxmi stayed in the matrimonial home for about 4 to 5 days and then returned to her parental home. Laxmi conveyed to her parents that the accused Sushila illtreated her for having given insufficient dowry. Be it noted, that the accused is the sister of PW 5 Butta Ramesh Verma and the paternal aunt of the deceased.
The accused came to escort Laxmi to the matrimonial home. PW 5 Butta Verma counseled the accused. The accused did not accept ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 3 apeal42of06 water in the house of PW 5 and declared that she would not accept water unless her demand is fulfilled. Laxmi accompanied the accused to the matrimonial home. Laxmi returned to her parental home on the occasion of Rakshabandhan. Laxmi conveyed to the family members that her in-laws illtreated her for dowry, used to beat and confine her in a room. She used to be serve stale food and was prevented from conversing with neighbours.
The prosecution case is that her husband Buddhavilas was made aware of the suffering and the response was that till such time the dowry is not paid, the accused Sushila would continue to illtreat Laxmi.
The accused escorted Laxmi to her parental house in summer and warned PW 5 that Laxmi will not be allowed entry in the matrimonial home till PW 5 fulfils the demand of dowry of Rs. 50,000/-. PW 5 tried to make the accused and other members of the family to see reason but in vain. A Panchayat was therefore convened on 2.10.2001 in the house of the accused. Discussions touching dowry took place, PW 5 assured that he would pay some amount as dowry and only thereafter the accused including Sushila showed willingness to allow Laxmi to return to her matrimonial home. The accused did come to the parental house of Laxmi and took her home immediately but then the harassment did not cease. PW 6 Deepak who is the brother of Laxmi went to the matrimonial house of Laxmi to escort her ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 4 apeal42of06 to the parental home on the occasion of Rakshabandhan. However, he was told that Laxmi was admitted in hospital due to burn injuries. PW 5 rushed to the hospital alongwith other family members, Laxmi talked with Durgaprasad (PW 4) the elder brother and conveyed that since the accused were illtreating her mentally and physically for dowry, she was compelled to take the extreme step.
4 One PSI Kakde of Ramnagar Police Station, Chandrapur received telephonic information form Head Constable Pandurang that Laxmi was admitted in Ward 6 with burn injuries. The said constable recorded the statement of Laxmi (Exh.76). Laxmi expired at 18.10 p.m. or thereabout and Head Constable Pandurang submitted the dying declaration (Exh.76) and intimation of death (Exh. 75) to the Ramnagar Police Station. On the basis of the said report of the Head Constable and the report of PW 5, First Information Report Exh. 50 was registered for offences punishable under section 498-A, 304-B read with section 34 of IPC.
5 Investigations ensued, PSI Kakde prepared spot panchanama Exh. 36 in presence of panchas and seized certain articles vide seizure panchanama Exh. 37. The statements of witnesses were recorded and the accused was arrested.
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5 apeal42of06 Completion of investigation culminated in chargesheet being submitted in the Court of Chief Judicial Magistrate, Chandrapur who committed the case to the Sessions Court. The learned Sessions Judge framed charge, the accused abjured guilt and claimed to be tried. The defence, as is discernible from the trend of the cross examination and the statement under section 313 of Criminal Procedure Code is of total denial and false implication.
6 Heard Miss. A.A. Kshirsagar, the learned counsel for the accused and Mr. N.B. Jawade, the learned Additional Public Prosecutor for the State.
7 Miss. Kshirsagar, the learned counsel for the accused would submit that the judgment of conviction is manifestly erroneous and against the weight of evidence on record. She would submit that the learned Sessions judge having acquitted Mohanlal, Buddhavilas, Aasha, father in law, the husband and sister in law of the deceased respectively of offence punishable under section 498-A and 306 of IPC, the learned Sessions Judge was not justified in convicting the accused for the offence in the absence of additional or different evidence against the accused Sushila. The conviction of the accused for offence punishable under section 306 and 498-A of IPC is unsustainable. The ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 6 apeal42of06 evidence on record is grossly insufficient to establish the offence against the accused in as much as there is no allegation much less proof of any specific overt act or role of the accused, is the submission.
Miss. Kshirsagar would submit that even if the evidence of the prosecution is accepted in entirety, the prosecution has not established the offence punishable under section 306 or 498-A of IPC. She submits that the evidence is grossly inadequate to conclude that the deceased Laxmi was treated with cruelty within the meaning of explanation (a) or (b) to section 498-A of IPC. She would submit that cruelty for the purpose of section 498-A of IPC is statutorily defined and a conduct which may be unreasonable, unacceptable or even foul and which may constitute a matrimonial offence or misconduct, may not necessarily constitute cruelty within the meaning of explanation (a) or (b) to section 498-A of IPC. The learned counsel would submits that there is not even an iota of evidence on record to establish a willful conduct which is of such a nature as is likely to drive Laxmi to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, of the deceased Laxmi nor is there evidence to suggest that Laxmi was harassed or illtreated with a view to coerce her or her family to meet any unlawful demand for any property or valuable security.
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7 apeal42of06 8 Mr. N.B. Jawade, the learned APP fairly does not dispute
that the evidence which the learned Sessions Judge was pleased to discard or ignore as unreliable or untrustworthy while acquitting the co-accused cannot be used against the accused Sushila. He would however, spell out the following circumstances to distinguish the role and culpability of the accused from that of acquitted three co-accused.
(i) In her dying declaration Exh. 76, the deceased Laxmi has clearly stated that she was fed up with the harassment meted out by the accused Sushila;
(ii) PW 7 Chunkuprasad Piplange has deposed that the accused Sushila was not inclined towards a positive and amicable resolution of the domestic issues ;
(iii) PW 4 Durgaprasad Verma has deposed that it was the accused Sushila who brought Laxmi alongwith her to the parental home of Laxmi and left her there.
(iv) PW 4 Durgaprasad Verma has deposed that during his conversation with Laxmi in the hospital, Laxmi disclosed that she set herself on fire due to illtreatment from the accused Sushila.
(v) PW 6 Deepak Verma has deposed that he had a talk with Laxmi in the hospital and was told that the accused Sushila illtreated Laxmi.
In my considered opinion, the dying declaration Exh. 76 is hardly ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 8 apeal42of06 confidence inspiring. The dying declaration is recorded by Head Constable Pandurang (PW 10) in the hospital. Concededly, Laxmi was writhing with pain with 98% burns. The failure of PW 10 Pandurang to even make an attempt to have Laxmi medically examined to ascertain her fitness to give statement, is inexplicable. Absence of a medical examination and certificate of fitness may not necessarily impeach the credibility of the dying declaration. However, since concededly the mental and physical fitness of Laxmi could have been easily ascertained, the failure to have Laxmi medically examined renders the dying declaration Exh. 76 doubtful. Be it noted, that there is no explanation forthcoming as to why no attempt was made to have Laxmi medically examined nor does Pandurang PW 10 assert that he was satisfied that Laxmi was in the mental and physical state to give statement. In the teeth of the evidence on record, the alleged disclosure made by Laxmi to PW 4 Durgaprasad and PW 6 Deepak are also suspect.
9 Even if the statement in the dying declaration Exh. 76 and the disclosures allegedly made to PW 4 and PW 6 are, arguendo, accepted at face value, the case of the prosecution is not taken any further. Omnibus statement that the accused subjected the deceased to harassment, is not sufficient to hold that Laxmi was subjected to cruelty ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 9 apeal42of06 within the meaning of explanation (a) or (b) to section 498-A of IPC. None of the prosecution witnesses have come out with the details of the alleged harassment or illtreatment to which Laxmi was allegedly subjected by accused Sushila. The statement in the dying declaration that Laxmi was fed up with life due to the harassment meted out by the accused Sushila is again too general and vague a statement to lead to an inference that the accused Sushila subjected Laxmi to cruelty of such nature and extent as would bring explanation (a) or (b) to section 498-A into play.
10 None of the other circumstances relied upon by the learned APP Shri. N.B. Jawade is of any assistance to the prosecution. The evidence of PW 4 and PW 6 is again too vague and sketchy and no particulars of any specific incident or overt act is spelt out. The insinuation in the evidence of PW 7 that the accused Sushila appeared to be disinclined to mutually resolve the domestic issues is only an inference drawn by the witness from the fact that the accused took her husband aside and then took charge of the proceeding. 11 Miss. Kshirsagar, the learned counsel for the accused relies on a relatively recent judgment of the Hon'ble Apex Court in Gurcharan Singh Vs. State of Punjab (2017) 1 SCC 433 and in ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 10 apeal42of06 particular to the following observations:-
"19. A plain refusal of the above quote also reveals that apart from an omnibus grievance against her in laws to be responsible for their death, for which according to her, they ought to be punished, there is no reference or disclosure of any specific incident in support thereof. The suicide note divulges her ownership of lands and house which per se belies the charge that she had been denied the share of her husband in the family property. Noticeably, no attempt was made by the prosecution to prove the author of the text through an expert and both the courts below solely based their conclusion, in this regard on the evidence of Pws 5 and 6, the brothers of Surjit, who identified the contents to be that of her again on eye estimation."
"20. Section 306 of the Code prescribes the punishment for abetment of suicide and is designated thus:
"306, Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
"21. It is thus manifest that the offence punishable is one ofabetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the properlling causative factor. The basis ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 11 apeal42of06 culpability and complicity of the indictable acts or omission are the concomitant indicces of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."
"24. In the legislative backdrop outlined hereinabove, Section 498-A of the Code also demands extraction:
"498-A. Husband or relative of husband of a women subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a women, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation - For the purpose of this section, "cruelty" means--
(a) 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 (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 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."
"25. This provision, as the quote hereinabove reveals, renders the husband of a women or the relative of his, punishable thereby with imprisonment for a term which may extend to three years and also fine, if they or any one of them subject her to cruelty. The Explanation thereto defining "cruelty" enfolds":
(a) 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 (whether mental or physical) of the woman; or ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 ::: 12 apeal42of06
(b) harassment of the woman, where it 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.
"26. Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the wilful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the person charged."
"29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been pronounced by this Court in S.S.Chheena v. Vijay Kumar Mahajan.
The learned counsel would further rely on the Division Bench judgment of this Court in Dilip & Ors..vs..State of Maharashtra & Anr (Criminal Application [Apl] No. 332 of 2016, and the judgments of the Hon'ble Supreme Court in Ramesh Kumar ..vs.. State of Chhattisgarh(2001) 9 SCC 618, Rajbabu & Anr..vs..State of Madhya Pradesh(2008) 17 SCC 526 and Sanju alias Sanjay Singh Sengar..vs.. State of Madhya Pradesh-AIR2002 SC 1998 to buttress her submission that if the evidence is tested on the anvil of the settled position of law, the prosecution must fail.
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13 apeal42of06 12 For the reasons articulated supra, I am not persuaded to
hold that the offence under section 498-A of IPC is established against the accused Sushila. Axiomatically, the charge under section 306 of IPC necessarily fails.
a)The judgment impugned is unsustainable in law and is set aside.
b)The accused is acquitted of offence punishable under section 498-A of IPC.
c)Bail bond of the accused stand discharged.
d)Fine paid by the accused, if any, be refunded to him.
e)The appeal is allowed.
JUDGE Belkhede ::: Uploaded on - 13/10/2017 ::: Downloaded on - 14/10/2017 01:54:33 :::