Kamalkishore Bajranglal Agrawal vs State Of Maharashtra
2009 Latest Caselaw 14 Bom

                                                           1


                 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.
    --------------------------------------------------------------------------------------------------------------
    Shri Anil S. Mardikar, Advocate for Applicant.
    Smt.R.A.Wasnik, A.P.P. for Respondent.
    --------------------------------------------------------------------------------------------------------------
           


                                    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

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

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

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

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

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

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..