1 apeal309.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.309 OF 2002
Tarachand s/o Rama Uikey,
Aged 40 years, Occupation - Labourer,
R/o Bampewada, Tahsil - Sakoli,
District - Bhandara. .... APPELLANT
VERSUS
State of Maharashtra,
P.S.O. Sakoli, District Bhandara. .... RESPONDENT
______________________________________________________________
Shri R.R. Prajapati, Advocate for the appellant,
Shri A.V. Palshikar, Addl.P.P. for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATED : 19 & 20 th SEPTEMBER, 2017 th ORAL JUDGMENT :
The appellant assails the judgment and order dated 25-4-2002 in Sessions Trial 53/1999, delivered by the learned 1 st Ad hoc Additional Sessions Judge, Bhandara, by and under which the appellant (hereinafter referred to as the "accused") is convicted for offences punishable under Sections 306 and 498-A of the Indian Penal ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:54 ::: 2 apeal309.02 Code and is sentenced to suffer rigorous imprisonment for three years and two years respectively and to payment of fine of Rs.2,000/- and Rs.1,000/- respectively.
2. The prosecution case as can be culled out from the complaint lodged by Nathu Sitaram Tekam on 08-4-1999 is thus :
The complainant is the maternal uncle of Shobha, the eldest daughter of Sumitra, the sister of the complainant. Shobha was residing with the complainant since her childhood and her marriage was solemnized with the accused in the year 1987. Two sons namely Santosh and Ankush are born from the wedlock. The complainant Natthu had presented one she-buffalo to Shobha as marriage gift. Since marriage, the accused used to beat Shobha under the influence of liquor. A case was instituted in the Court at Sakoli and by a judicial order the accused Tarachand was directed to hand over custody of the sons to Shobha. The complaint states that the proceedings were instituted since the accused did not allow Shobha to cohabit with him. Pursuant to the judicial order, the accused, Shobha and the sons started residing together. The complaint further states that after few days, she-buffalo gifted to Shobha was sold by Shobha's mother for Rs.4,000/-. The accused took Rs.2,600/- and spent the money on ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:54 ::: 3 apeal309.02 liquor. Shobha's mother did not hand over remaining amount of Rs.1,400/- to the accused which annoyed the accused, who then physically assaulted Shobha after consuming liquor. The accused had an extra marital relationship with a woman working as helper and the said woman stayed in the house of Shobha for 15 to 20 days. Shobha was beaten even in the presence of the said woman, is the recital in the complaint. The complaint further states that due to the ill-treatment, Shobha committed suicide on 07-4-1999 by jumping into the well.
3. On the basis of the complaint, first information report (Exhibit 13) was registered and after completion of the investigation, charge-sheet for offences punishable under Sections 306 and 498-A of the Indian Penal Code was submitted in the court of the Judicial Magistrate First Class, Sakoli who committed the case to the Court of Sessions. The learned Sessions Judge framed charge at Exhibit 8, the accused pleaded not guilt and claimed to be tried. The defence as is discernible from the statement under Section 313 of the Criminal Procedure Code of the accused is of total denial.
4. The learned Counsel for the accused Shri Prajapati submits that there is absolutely no evidence on record to bring home the ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:54 ::: 4 apeal309.02 charge either under Section 306 or 498-A of the Indian Penal Code beyond reasonable doubt. The evidence is too vague, sketchy and marred by inter se inconsistencies and discrepancies, is the submission. The learned Counsel for the accused would submit, that even if the allegations are taken at face value, cruelty within the meaning of Explanations (a) and (b) of Section 498-A is not established. A fortiori offence punishable under Section 306 of the Indian Penal Code is also not established.
5. Per contra, the learned Additional Public Prosecutor submits that the evidence on record is convincing and cogent and the learned Sessions Judge was more than justified in convicting the accused for offences punishable under Sections 306 and 498-A of the Indian Penal Code.
6. The complainant/informant is examined as P.W.1. In the examination-in-chief, a general and vague statement is made that the accused was beating and ill-treating Shobha. P.W.1 states that he came to know that since the accused beat Shobha, her father went to her matrimonial home and escorted Shobha back to her parental home. P.W.1 states that since the accused promised to treat Shobha ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:54 ::: 5 apeal309.02 well, her father sent her with the accused. P.W.1 has also deposed that the accused married the said labour after the death of Shobha. In the cross-examination, P.W.1 admits to have visited the matrimonial home of Shobha only twice. The last visit is 3 to 4 years prior to the death of Shobha. P.W.1 claims that he was informed about the ill-treatment by Shobha. P.W.1 admits that he did not know the name of the woman with whom, according to P.W.1, the accused had developed illicit relationship. He admits that he did not know the name of the second wife of the accused nor the age of the woman, nor the date or month of the marriage. P.W.1 denies the suggestion that he lodged the report since he fell profoundly sad due to the demise of Shobha.
7. The father of the deceased Shobha, Sukharam Dhurve is examined as P.W.3. He states that the accused used to beat Shobha but then she was not narrating the ill-treatment to P.W.3. He then makes a reference to the sale of the she-buffalo and states that the accused was quarreling with him for the balance amount. P.W.3 states that since he did not make the payment of the balance amount to the accused, Shobha used to be beaten by the accused. P.W.3 states that since the accused was physically ill-treating Shobha, she had filed judicial proceedings. However, in the cross-examination. P.W.3 admits ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 ::: 6 apeal309.02 that Shobha did not tell him about the beating. He admits that he did not know the cause of death. He admits that he did not know whether the accused married again after the death of Shobha.
8. The mother of the deceased is examined as P.W.4. She states that she was not informed about ill-treatment by her deceased daughter. At this stage, permission was sought under Section 154 of the Indian Evidence Act to put questions in the nature of cross- examination. The said permission was granted by the learned Sessions Judge. In response to the questions put by the learned Public Prosecutor, P.W.4 does support the prosecution to the extent she states that the accused used to beat Shobha, the amount of the share in the she-buffalo was spent by the accused in the liquor. That since the remaining amount was not given to the accused, he ill-treated Shobha. P.W.4 has also deposed that the accused had developed an extra marital relationship with a labour working with him and that he was ill-treated Shobha in view of the said relationship. The mother of the deceased was then cross-examined on behalf of the accused. She admits that as and when she visited the matrimonial house of Shobha, she did not notice any dispute and indeed she admits that she noticed "good atmosphere" in the house. She admits that Shobha never told ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 ::: 7 apeal309.02 her about any ill-treatment or harassment from the accused. She states that P.W.1 lodged the report since she felt very sad due to the death of Shobha.
9. P.W.5 is the sister of P.W.4. She did not support the prosecution. The learned Sessions Judge permitted learned Public Prosecutor to put questions in the nature of cross-examination. Nothing is elicited in the cross-examination by the learned Public Prosecutor to assist the prosecution. In the cross-examination on behalf of the accused, she admits that she was not aware of any dispute between Shobha and the accused and that Shobha did not complain about the accused. She states that Shobha was emotionally weak. "Weak by brain", is the expression used.
10. At this stage, it would be apposite to reproduce Section 498-A of the Indian Penal Code, which reads thus :
"498-A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to file.
Explanation - For the purpose of this section, "cruelty" ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 :::
8 apeal309.02
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 scrutiny or is on account of failure by her or any person related to her to meet such demand.)"
Section 498-A of the Indian Penal Code was inserted by Act 46 of 1983, with the object of preventing torture and ill-treatment to a woman by her husband or by relatives of her husband. In order to bring home the charge under Section 498-A of the Indian Penal Code, it would be necessary for the prosecution to prove that the woman was subjected to cruelty as defined in the explanation to Section 498-A of the Indian Penal Code. 'Cruelty' is defined to mean any willful 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) and harassment of a woman whether such harassment is with view to coercing 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.
::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 :::
9 apeal309.02
11. It is well settled that not every kind of cruelty constitutes an offence under Section 498-A of the Indian Penal Code. Cruelty for the purpose of Section 498-A of the Indian Penal Code may be different from cruelty envisaged under other statutory provisions including the cruelty necessary to establish a matrimonial misconduct or offence.
12. It would be apposite to refer to section 306 of the Indian Penal Code, which read thus:-
"Section 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."
It is well settled that mens rea is a sine qua non to bring home charge under section 306 of the Indian Penal Code and it is necessary for the prosecution to establish that the accused had the intention to aid or instigate or abet the deceased to commit suicide.
Abetment is held to involve a mental process of instigating a person or intentionally aiding a person in doing of a thing. The conviction cannot be sustained unless a positive act on the part of the accused to ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 ::: 10 apeal309.02 instigate or aid in commission of suicide, is established.
13. The evidence on record will have to be tested on the anvil and touchstone of the ambit of Section 498-A of the Indian Penal Code. Concededly, the suicide is after 12 years of the marriage. The statement in the evidence of father of the deceased that she-buffalo was sold and since the accused was not paid the entire sale proceeds, the accused used to quarrel with P.W.1, is obviously not suggestive of an unlawful demand within the meaning of Explanation (b) to Section 498-A of the Indian Penal Code. There is not even an iota of evidence on record to suggest that accused made an unlawful demand and ill- treated Shobha to coerce Shobha or her relatives to fulfill the unlawful demand. The next question would be whether the evidence on record proves that Shobha was subjected to cruelty within the meaning of Explanation (a) to Section 498-A of the Indian Penal Code. For the purpose of Explanation (a) cruelty must be a wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or damage to life, limb or health (whether mental or physical) of the woman. I am afraid, the evidence on record is grossly inadequate to hold that the deceased Shobha was subjected to cruelty within the meaning of Explanation (b) to Section 498-A of the Indian ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 ::: 11 apeal309.02 Penal Code. The evidence of P.W.4 who is the mother of the deceased must be kept out of consideration since the credibility is rendered vulnerable in view of her ever shifting stands. The mother of the deceased initially did not support the prosecution. The learned Public Prosecutor sought permission under Section 154 of the Indian Evidence Act to put her questions in the nature of cross-examination, in response to which she did depose in favour of the prosecution version. But then, immediately in the cross-examination on behalf of the accused, she has given admissions wiping out the effect of the earlier testimony. The learned Additional Public Prosecutor would urge that the testimony of a witness who has not supported the prosecution is not washed out and there is neither a recognized rule of evidence nor a judicial precedent that the testimony of a "hostile witness" must be discarded altogether. The learned Additional Public Prosecutor is right in contending that the testimony of such a witness cannot be ip so facto discarded. However, in the factual matrix, I am not in a position to hold that even some part of the testimony of P.W.4 can be taken into consideration, her vacillating stand destroys the credibility of evidence and it would be unsafe to rely in any manner and to any extent on the evidence of P.W.4. P.W.5 has not supported the prosecution and nothing is brought out in her cross-examination to ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 ::: 12 apeal309.02 take the case of the prosecution any further.
14. The evidence of father of the deceased P.W.3 is of little assistance to the prosecution. The vague statement that accused used to beat Shobha and that the accused quarreled with P.W.3 over the non-payment of the balance sale proceeds of the she-buffalo is hardly sufficient to suggest cruelty within the meaning of Explanation (a) or
(b) to Section 498-A of Indian Penal Code. That apart, the effect of the statements in the examination-in-chief is wiped out by the admission given in the cross-examination that the deceased did not tell P.W.5 that the accused beat her. P.W.3 admits that he did not meet the accused again, that he has not visited the house after the death of Shobha and that he is not aware whether the accused has solemnized second marriage. The only witness whose evidence would need some consideration from the perspective of the prosecution is P.W.1. Be it noted, that there is absolutely no live link demonstrated on record between the incident of sale of she-buffalo and the quarrel and cruelty allegedly meted out by the accused to the non-payment of the sale consideration and the death of Shobha. None of the witnesses of the prosecution have stated that in which year the incident of sale of she
-buffalo took place. Concededly, the marriage was solemnized in 1987. ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 :::
13 apeal309.02 The she-buffalo was a marriage gift. The she-buffalo must have been gifted by P.W.1 to Shobha in 1987. Shobha died twelve years after the marriage. Nothing is brought on record to clarify as to when and in which year the she-buffalo sold. I have no hesitation in rejecting the evidence of the prosecution that since the accused was not paid the balance consideration of the she-buffalo, for whatever reason, the accused subjected Shobha ill-treatment. The other allegation leveled by P.W.1 is that the accused had developed an illicit relationship. An extramarital relationship is morally unacceptable. However, an extramarital relationship is not necessarily cruelty as is statutorily defined in Section 498-A of Indian Penal Code in Explanations (a) and
(b). The last visit of P.W.1 to the matrimonial house of Shobha is admittedly four years prior to the death of Shobha. The evidence of P.W.1 is inconsistent with the evidence of the parents of the deceased Shobha. The evidence is marred by exaggerations and embellishments. I am not persuaded to hold that the evidence of P.W.1 is confidence inspiring.
15. On a overall appreciation of the evidence, I am not persuaded to agree with the learned Sessions Judge that offences under Sections 498-A and 306 of the Indian Penal Code are proved ::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 ::: 14 apeal309.02 beyond reasonable doubt.
16. I would set aside the judgment and order dated 25-4-2002 delivered by the learned 1st Ad hoc Additional Sessions Judge, Bhandara in Sessions Trial 53/1999. The accused is acquitted of offences punishable under Sections 498-A and 306 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.
The appeal is allowed and disposed of accordingly.
JUDGE adgokar/nikhare.
::: Uploaded on - 20/09/2017 ::: Downloaded on - 22/09/2017 01:45:55 :::