1 apeal352.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 352 OF 2002
1) Ananda s/o Namdeo Rathod,
Aged about 40 years,
Occupation - Agriculturist,
2) Yashodabai w/o Namdeo Rathod, - (Abated as per
Aged about 50 years, order dt. 17-4-2017)
Occupation - Labourer.
Both resident of Lohatwadi,
Police Station Ner, District Yavatmal. .... APPELLANT
VERSUS
The State of Maharashtra,
through Police Station Officer,
Police Station, Ner, District Yavatmal. .... RESPONDENT
______________________________________________________________
Shri S.D. Dharaskar, Advocate for the appellant,
Shri N.B. Jawade, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 11-09-2017
DATE OF PRONOUNCING THE JUDGMENT : 30-10-2017
JUDGMENT :
The challenge is to the judgment and order dated 27-6-2002 in Sessions Trial 174/1996 delivered by the learned ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 2 apeal352.02 Additional Sessions Judge, Yavatmal, by and under which appellant 1 Ananda and appellant 2 Yashodabai are convicted for offence punishable under Section 498-A read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs. 200/- and for offence punishable under Section 306 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.200/-.
2. Appellant 1 and appellant 2 faced trial for the said offence alongwith one Ukanda (accused 3) and one Babarao (accused 4). Accused 3 and 4 are, however, acquitted and appellant Yashodabai (accused 2) expired during the pendency of the appeal, with the result, that the appeal stands abated against her.
3. The case of the prosecution as unfolded during the course of the trial is thus :
The deceased Kavita and appellant 1 Ananda (hereinafter referred to as the "accused") entered into matrimonial alliance in the year 1993. The couple was blessed with a girl child. Kavita concededly committed suicide on 15-6-1996 at village Lohatwadi, Tahsil Ner, ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 3 apeal352.02 District Yavatmal.
In view of the receipt of information that Kavita, who was rushed to Rural Hospital, Ner on 15-6-1996, was declared brought dead on 1-00 p.m. on 15-6-1996, an enquiry under Section 174 of the Criminal Procedure Code was registered by Head Constable Subhash of Police Station Ner. However, in view of the report lodged by the father of the deceased Kavita, Bhaurao Pawar alleging that Kavita was subjected to cruelty and was driven to commit suicide, offence punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code was registered against accused Ananda, Yashodabai, Ukanda and Babarao on 15-6-1996.
The investigation was conducted by PSI Ashok Aiyyar who prepared the spot panchanama, seized the plastic bottle containing insecticide, sent the dead body for post-mortem examination, seized the clothes of the deceased, arrested the accused, recorded the statements of witnesses and upon a letter addressed by accused Ananda to the father of deceased Bhaurao being produced by Bhaurao on 21-6-1996, seized the said letter dated 11-6-1996. The completion of investigation culminated in submission of charge-sheet in the Court of Judicial Magistrate First Class, Ner who committed the case to the Sessions Court. The learned Sessions Judge framed charge at Exhibit ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 4 apeal352.02 No.17, the accused abjured guilt and claimed to be tried. The defence of the accused as is discernible from the trend of the cross-examination and the statement recorded under Section 313 of the Criminal Procedure Code is of total denial and false implication. The defence also appears to be that the deceased Kavita was not keeping good health which may have driven her to take the extreme step. The prosecution has examined as many as five witnesses. P.W.1 Bhaurao Pawar, P.W.2 Shanti Pawar and P.W.3 Ramesh Pawar, the father, mother and uncle of the deceased Kavita are the material witnesses who have been examined to prove that the deceased Kavita was subjected to cruelty. P.W.4 Haridas Jadhao is the panch to the seizure panchanama Exhibit 54 and P.W.5 Ashok Aiyyar is the Investigating Officer.
4. In order to prove that the deceased Kavita was subjected to cruelty by the accused, the prosecution heavily relies on the testimonies of P.W.1 to P.W.3 and on a letter dated 11-6-1996 addressed by the accused Ananda to P.W.1 Bhaurao, the contents of which according to the prosecution prove that the accused Ananda subjected the deceased to cruelty to coerce her and her family members to fulfill an unlawful demand. The authenticity of the letter is not in dispute. The defence, ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 5 apeal352.02 however, contends, that a holistic reading of the letter Exhibit 55 does not take the case of the prosecution any further and au contraire, the contents of the letter Exhibit 55 probablises the defence that Kavita committed suicide due to health issues.
5. The learned Sessions Judge has also attached significant importance to the letter Exhibit No.55 and to the fact that the suicidal death of Kavita is in close proximity to the letter dated 11-6-1995. Nothing is brought on record by either the prosecution or the defence as to when was the letter Exhibit 55 received by P.W.1. The defence of the accused is that P.W.1 had purchased certain goods on credit from one Gokuldas Seta of Ner and all that P.W.1 Bhaurao was being impressed upon was to clear the said dues. The learned Counsel for the accused invites my attention to the contents of the letter which, other than asking or rather warning P.W.1 to make the payment to the shop keeper also make a reference to the ill health of the deceased Kavita. It would be apposite to consider the contents of said letter Exhibit 55, which reads thus :
" Jheku ekekthl lizse ueLdkj] fo-fo- fpB~Bh ns.;kl dkj.k dh] nqdkunkjkps iSls ;sR;k 'kqdzokjP;k vkr dks.kR;kgh gkyrhr ikBfo.ks- ukghrj dke Qkjp okbZV ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 6 apeal352.02 gksbZy- gs xks"V pkaxY;k fjrhus y{kkr ?;k dkj.k nqdkunkj Qkjp fc?kMyk vkgs vkf.k dforkph rC;sr fBd ukgh- nksu osGk nok[kkuk dsyk rjhgh tkxsoj vkyh ukgh-
dGkos vkiykp tkobZ lgh
rk-11-6-96 eaxGokj"
True it is that the language of the letter is a bit harsh and brusque. P.W.1 Bhaurao is called upon to make the payment to the shop keeper and is warned that if the payment is not made by coming Friday (since the letter appears to have written on 11-6-1996 (Tuesday) coming Friday would be 14-6-1996) serious consequences may ensue since the shop keeper is very annoyed. The letter then proceeds to recite and that the deceased Kavita is not keeping good health and that she was taken to the hospital twice but to no avail.
The Investigation officer does not appear to have made any effort to investigate the possibilities which emerge from the contents of the letter. The letter was seized from P.W.1 Bhaurao on 21-6-1996. No attempt appears to have been made by the Investigating Officer to ascertain the name and identity of the shop keeper and to further ascertain as to which goods were purchased and from whom was the credit amount due and recoverable. The learned Sessions Judge has observed that the defence did not examine the shop ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 7 apeal352.02 keeper nor did the defence bring material on record to prove the defence that the letter was addressed by the accused to P.W.1 in connection with the purchase made on credit by P.W.1 from the shop keeper at Ner. I am afraid, the accused was under no burden to prove the defence beyond reasonable doubt muchless by examining the shop keeper as a defence witness. It is axiomatic from a bare perusal of the contents of Exhibit 55 that the possibility that the reference was to payment of some amount to the shop keeper against goods purchased on credit by P.W.1 Bhaurao is a real and not fanciful possibility. The Investigating Officer could have and ought to have investigated in the obvious direction and the failure of the accused to examine the shop keeper as a defence witness cannot be held against the accused. Pertinently, the same letter makes a reference to the ill health of Kavita and to the fact that despite hospitalization or visits to the hospital twice there was no relief. Holistically viewed, the letter Exhibit 55 does not assist the prosecution in bringing home the charge. Au contraire, as is submitted by the learned Counsel for the accused, the defence is probablised on the touchstone of preponderance of probabilities.
6. The evidence of P.W.1, P.W.2 and P.W.3, the father, mother and uncle of deceased Kavita respectfully is not sufficient to ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 8 apeal352.02 establish that Kavita was subjected to cruelty within the meaning of Explanation (a) or Explanation (b) to Section 498-A of the Indian Penal Code. The vague and general statements of P.W.1 to P.W.3 that Kavita told them that the accused was demanding amount and used to harass her are not sufficient to establish the charge of cruelty. The evidence is sketchy and the prosecution witnesses have not come out with any specific instance of cruelty nor are the details of the alleged cruelty forthcoming. The learned Sessions Judge has acquitted accused 3 and accused 4 against whom P.W.1 to P.W.3 have in unison alleged some or the other overt act such as making an unlawful demand or instigation. It is not uncommon that the family members of the deceased woman, traumatized by the death of their near and dear one, tend to implicate the husband and his family members, actuated by a sense of anger and the perception that the husband and his family could be in somewhere responsible for the death. The evidence of relatives is not necessarily that of interested witnesses and indeed may be the only evidence available to the prosecution to prove that the deceased woman was subjected to cruelty. But then, such evidence must be tested with some caution in the absence of specific instances of cruelty or the necessary particulars or details thereof. The statement in the deposition of P.W.1 Bhaurao that accused used to beat Kavita is ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 9 apeal352.02 shown to be an omission. The statement that Kavita told Bhaurao that if the amount is not paid, accused will beat her, is again an omission. P.W.1 Bhaurao admits that the accused owns field property although he claims ignorance of the extent thereof. It is suggested to P.W.1 Bhaurao that he purchased grocery articles from a shop keeper one Gokuldas Seta of Ner, which suggestion he denies. P.W.1 Bhaurao admits that the newly born girl child was aged one or two months when Kavita committed suicide. He, however, denies the suggestion that Kavita was not keeping well and was taken to the dispensary on three or four occasions. P.W.2 Shanti Pawar, the mother of the deceased Kavita, has deposed that according to Kavita, she was beaten by the accused. She has deposed that whenever Kavita used to come to her parental house, she used to disclose about the ill-treatment. The statement in the examination-in-chief that the accused conveyed to Kavita that in case the amount is not brought, her life will be in danger, is shown to be an omission. The witness is not in a position to give the details of visits by Kavita to her parental home like the day or month of the visits. Ramesh Pawar who is examined as P.W.3 states that when Kavita used to come to the village, she used to visit him and tell that the accused and his mother were demanding money from her parents and that they used to beat her. This witness admits to have never ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 ::: 10 apeal352.02 visited the matrimonial house of Kavita even on the occasion of birth of Kavita's daughter.
7. In my opinion, the evidence of P.W.1 to P.W.3 is grossly inadequate to come to a conclusion that Kavita was subjected to cruelty within the meaning of Explanations (a) and (b) to Section 498-A of the Indian Penal Code. Since the prosecution has failed to prove that the deceased Kavita was subjected to cruelty, the statutory presumption under Section 113-A of the Indian Evidence Act is not activated. It is axiomatic, that since it is not proved that the deceased Kavita was subjected to cruelty, the charge under Section 306 of the Indian Penal Code must necessarily fail.
8. The judgment and order dated 27-6-2002 in Sessions Trial 174/1996 delivered by the learned Additional Sessions Judge, Yavatmal is set aside. The accused is acquitted of the offence punishable under Section 498-A and Section 306 read with Section 34 of the Indian penal Code. The bail bond of the accused shall stand discharged. Fine paid by the accused, if any, be refunded to him.
JUDGE adgokar ::: Uploaded on - 30/10/2017 ::: Downloaded on - 31/10/2017 02:25:12 :::