Bombay High Court
Sadashiv Govind Nadgire & Anr vs The State Of Maharashtra on 13 August, 2015
Bench: A.M. Thipsay
902-APPEAL-16-1995.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.16 OF 1995
1) SADASHIV GOVIND NADGIRE )
2) SMT.VATSALABAI KISAN NADGIRE )...APPELLANTS
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Jaydeep D. Mane, Advocate for the Appellants.
Mrs.S.Gajare-Dhumal, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 13th AUGUST 2015.
JUDGMENT :
1 The appellants were prosecuted on the allegation of
having committed offences punishable under Section 306 of the
Indian Penal Code (IPC) read with Section 34 of the IPC and
Section 498A of the IPC read with Section 34 of the IPC. The
learned Sessions Judge, Solapur, after holding a trial, held them
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guilty of the said offences. He sentenced each of the appellants to
suffer Rigorous Imprisonment for 10 years and to pay a fine of
Rs.500/-, with respect to the offence punishable under Section
306 of the IPC read with Section 34 of the IPC, and to suffer
Rigorous Imprisonment for 2 years and to pay a fine of Rs.200/-,
with respect to the offence punishable under Section 498A of the
IPC. The appellants, being aggrieved by the said order of
conviction and the sentences imposed upon them, have
approached this court by filing the present appeal.
2 The prosecution of the appellants had occasioned by
the unnatural death of Ujwala, wife of appellant no.1 Sadashiv
Nadgire. Appellant no.2 Vatsalabai Nadgire, is the wife of the
uncle of appellant no.1. Appellant no.2 had no issues. Appellant
no.1's parents had passed away, and therefore, he had been
residing with appellant no.2, since childhood.
3 The prosecution case, as put forth before the trial
court, in brief, be stated thus :
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Ujwala, daughter of Nirmala Harke (PW1), from
Village Ashti, District Jalna, married the appellant no.1 on 5 th
February 1992. After her marriage, Ujwala started residing with
the appellants, at Barshi. In the night between 11th and 12th June
1993, Ujwala got herself bolted in a room and set herself on fire.
The door of the room was broken open, fire was put off, and
Ujwala was taken to hospital, but she died immediately thereafter.
On 12th June 1993 itself, Deepak Hule (PW6), a neighbour of the
accused persons, informed Nirmala about the death of Ujwala.
Nirmala and others then went to Barshi by the jeep, which had
been brought by Deepak. Nirmala then lodged a report with the
police, alleging that, Ujwala was being treated with cruelty by the
appellants, and that, Ujwala had committed suicide because of the
cruel treatment given to her by the appellants, and that, the
appellants had thus abetted the commission of suicide by Ujwala.
This was treated as First Information Report (FIR), on the basis of
which, the offences punishable under Sections 498 IPC and 306
IPC read with Section 34 IPC came to be registered against the
appellants. On completion of investigation, a charge-sheet was
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filed by Mallikarjun Umberje (PW9), Inspector of Police attached
to Barshi Police Station, against the appellants.
4 The appellants were, thereafter, tried, convicted and
sentenced as aforesaid, by the learned Sessions Judge for Solapur.
5 I have heard Mr.Jaydeep Mane, the learned counsel for
the appellants. I have heard Mrs.S.Gajare-Dhumal, the learned
APP for the State. I have carefully gone through the entire
evidence adduced during the trial. I have carefully considered the
impugned judgment.
6 The prosecution examined totally nine witnesses
during the trial. In addition to Nirmala (PW1) the First
Informant, one Chabu Harke (PW2), the real brother of Nirmala's
husband, was examined to prove the cruel treatment allegedly
given by the appellants to Ujwala. The third witness Rajani
Nargide (PW3) is the wife of the real brother of appellant no.1.
The fourth witness Yamunabai (PW4), resident of Barshi, is the
one who was acquainted with the appellants as well as Ujwala.
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The fifth witness Vijaya Hule is a cousin of Ujwala, and the
sixth witness Deepak Hule, is the brother-in-law of Vijaya Hule.
The seventh witness Dr.Bharat Gaikwad (PW7) was working as
Medical Officer at Jawahar Municipal hospital, Barshi, at the
material time. He is the one who had performed postmortem
examination on the dead body of Ujwala. The eighth witness
Nagnath Rathod, Head Constable of Police, is the one, who, on
receipt of the information from Jawahar hospital about the
admission of Ujwala due to burn injuries, had gone to the hospital
and had given a requisition to call a Magistrate for recording
dying declaration of Ujwala. (However, Ujwala died before the
Magistrate could arrive in the hospital). He had conducted an
inquiry into the unnatural death of Ujwala, before the
investigation on the basis of the report lodged by Nirmala,
commenced.
7 Mr.Jaydeep Mane, the learned counsel for the
appellants, contended that there was absolutely no evidence
to show that Ujwala was treated with cruelty by the
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appellants, or any of them. He submitted that, on the
contrary, there was evidence to show that Ujwala was not being
treated with cruelty at all. The learned APP, on the other hand,
submitted that the judgment written by the learned Sessions
Judge is a well considered judgment, and that, the allegation of
cruelty was satisfactorily proved from the evidence of Nirmala
itself.
8 The fact that Ujwala indeed committed suicide is not
in dispute. The evidence shows that Ujwala had bolted herself
inside a room, and thereafter, set herself on fire. Her death could
not be homicidal or even accidental; and as a matter of fact, there
is not even a suggestion to that effect. Thus, that Ujwala died a
suicidal death, was satisfactorily established.
9 The question that needs to be determined is, whether
Ujwala committed suicide because of the cruel treatment given to her
by the appellants. Naturally, in this context, whether the appellants
had indeed treated Ujwala with cruelty would need examination.
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10 No dying declaration of Ujwala could be recorded. No
suicide note had been left by her. Thus, no version of Ujwala, as
to what led her to taking the extreme step of putting an end to her
life, is available. Thus, that she committed suicide because of the
cruel treatment given by the appellants, is expected to be inferred
from the fact that she was being treated with cruelty by the
appellants. It is, therefore, that the evidence of cruelty, which is to
be gathered primarily from the evidence of Nirmala, assumes
significance.
11 According to Nirmala, for a period of one month after
the marriage of Ujwala, which took place on 5th February 1992,
the appellants treated her well. Nirmala has given a reason as to
why the ill-treatment started thereafter. According to her, there
were illicit relations between the appellants, and that, Ujwala had
come to know about it; and that is why the appellants started ill-
treating Ujwala. The appellants were not allowing her to go out
of the house and to talk with outsiders. Appellant no.2 Vatsalabai
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was not allowing Ujwala to sleep with appellant no.1. That,
appellant no.1 Sadashiv Nadgire used to beat Ujwala and used to
pick up quarrels with her, at the time of taking meals.
12 How Nirmala, who was away at Ashti, came to know
about this, is explained by Nirmala. Ujwala had come to Nirmala's
house at the time of Diwali festival, and at that time, Ujwala had
told Nirmala everything about the ill-treatment given to her by the
appellants. Ujwala had told Nirmala that she was not getting the
love of her husband and mother-in-law (appellant no.2). Ujwala
had also told Nirmala that she was being beaten and was not
being allowed to go out of the house.
13 Nirmala's evidence shows that after Diwali festival,
Ujwala was sent back to the matrimonial house, and then, was
again brought to Ashti on 25 th January 1993, as there was
marriage of Nirmala's niece. During the time she was there,
Ujwala used to tell Nirmala that she was being ill-treated, and that
she was not getting the love of her husband and mother-in-law.
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Ujwala was apprehending that the ill-treatment would increase as
she had learnt about the illicit relations between the appellants.
Ujwala stayed at Ashti till 31st May 1993.
14 Sometime prior to 31st May 1993, Ujwala had received
a letter from the wife of appellant no.1's brother, who resides at
Ahmedabad, saying that she would take Ujwala to Ahmedabad,
and that, Ujwala should go to Barshi to see her. On receiving this
letter, Ujwala wanted to go back to Barshi, but Nirmala asker her
to wait till somebody from the appellants would come to fetch her.
On 31st May 1993, Rajini (PW3) and Yamunabai (PW4) came to
Ashti to take Ujwala back. Nirmala was not willing to send her,
but as Yamunabai said that the tickets for Ahmedabad were
reserved, Nirmala permitted Ujwala to go with them. Ujwala,
Rajini and Yamunabai left Ashti on 1st June 1993. On 5th June
1993, Yamunabai came to Ashti with a chit in the handwriting of
Vatsala, to the effect that appellant no.2 had asked the persons,
who were present at the time of settlement of the marriage of
Ujwala with appellant no.1, to be brought to Barshi. Thereafter,
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Chabu Harke (PW2) and some others along with Nirmala went to
Barshi. Appellant no.1 asked for a divorce from Ujwala.
According to Nirmala, the divorce was demanded because the
illicit relations between the appellants had come to light and to
save their face, appellant no.1 wanted to give divorce to Ujwala.
Nirmala was not willing to allow a divorce to be given, so soon
after the marriage. The appellants then obtained a writing from
Ujwala, that, if there would be quarrels in the family thereafter,
she herself would give divorce to appellant no.1. On this writing /
bond, the signatures of Ujwala, Chabu Harke, Rajini and Nirmala
were taken. The bond was executed on 6 th June 1993. Nirmala
and others left for Barshi on 7th June 1993.
15 On 11th June 1993, Deepak Hule (PW6) came to
Barshi by a jeep, told Nirmala about the death of Ujwala due to
burn injuries, after which Nirmala with her relatives went to
Jawahar Hospital, Barshi. She, then, lodged report on 12th June
1993.
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16 Thus, the cause behind the cruel treatment given to
Ujwala, as stated by Nirmala, was that the appellants had illicit
relations between them, and that, Ujwala had become aware of
these relations. No other cause, such as demand for money etc.,
has been mentioned by Nirmala for the cruel treatment, which
was allegedly given by the appellants to Ujwala.
Interestingly, in the examination-in-chief itself,
Nirmala has stated that Ujwala was writing letters to her, but she
used to write letters in the presence of appellant no.2, and
therefore, Ujwala was writing that 'everything was OK.' Thus,
admittedly, in the letters that were sent by Ujwala to Nirmala,
Ujwala had not complained about any ill-treatment. In the cross-
examination, Nirmala has admitted that in all the letters received
from Ujwala, she had written that she was happy. True, Nirmala
has given a reason as to why Ujwala used to write that she was
happy, though infact, she was not happy, viz., that 'Ujwala had to
write those letters in the presence of appellant no.2, and as such,
she had to write that she was happy.' But how Nirmala derived
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the knowledge of this, is not clear. Nirmala has not stated that
Ujwala told her that she used to write such letters because of the
watch kept by appellant no.2. Nirmala, apparently, did not find it
necessary to advise Ujwala to write down about the ill-treatment
given to her, atleast to negative the inference that would be drawn
from the letters sent to Nirmala.
In the cross-examination, it transpired that, after her
marriage, Ujwala had come to Ashti twice. The first on the
occasion of Diwali, and the second at the time of the marriage of
Nirmala's niece. That, Ujwala stayed at Ashti till December 1992,
when she had come on the occasion of Diwali, and as already
observed, when she came in January 1993, she was there till 31 st
May 1993. Nirmala admitted that she wanted Ujwala to stay with
her for a longer period, but that, she sent her back because
appellant no.1 had sent a letter and called her. It transpired that
Nirmala had also gone to Barshi with Vijaya in the month of
December. In the cross-examination, Nirmala stated that when
Ujwala had visited Ashti on the occasion of Diwali, she was
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examined by a private nurse in Ashti, who had told that Ujwala
was pregnant. However, Nirmala immediately denied this and
said that Ujwala was not pregnant at all, at that time. She
claimed that, she was not aware whether any abortion had taken
place, and whether Ujwala was very much disturbed because of
the abortion. It was suggested to Nirmala that Ujwala was very
emotional, which she accepted, but the other suggestion that
Ujwala was unhappy because she was issue-less, was not accepted
by Nirmala.
19 In the cross-examination, it is also revealed that
Ujwala had written to Nirmala that she wanted to re-appear for
the 12th Standard examination, in which she had earlier failed,
and that, appellant no.2 had said that Ujwala should study hard
and should pass the 12th Standard examination.
20 In the FIR, Nirmala had not stated about Ujwala
having told her regarding the illicit relations between the
appellants. According to Nirmala, she did state so, but the police
did not record it as they were not ready to believe the same.
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21 In his evidence, Chabu Harke (PW2) says that he had
gone to Barshi about four to six months after the marriage of
Ujwala, and met Ujwala. According to him, at that time, Ujwala
had told him that the appellants were ill-treating her, that she was
not being allowed to sleep with her husband, that appellant no.2
was sleeping with appellant no.1 etc. He has also narrated the
other incidents, more or less in conformity with what Nirmala has
stated. However, in the cross-examination, it has been revealed
that he had not stated before the police about his having gone to
Barshi, meeting Ujwala, and Ujwala complaining to him etc.
Though he claimed to have stated so before the police, the
omission in that regard has been duly proved by questioning the
Investigating Officer Umberje (PW9).
22 Rajini (PW3) and Yamunabai (PW4) did state about
their having gone to Ashti to bring Ujwala to Barshi. Rajini has
stated that she was sent by appellant no.2 for bringing Ujwala
from her parents' house, and that, she was told that she should tell
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Ujwala that Ujwala was to be taken to Ahmedabad and under that
pretext, she should be brought. However, in the cross-
examination, her omission to state before the police that appellant
no.2 had told her to bring Ujwala to Barshi under the pretext that
she was to be sent to Ahmedabad, has been brought on record.
The omission to state so has been duly proved by Umerje (PW9).
Yamunabai has categorically stated that Ujwala was being treated
well by the appellants. Yamunabai though speaks of bringing
Ujwala from Ashti to Barshi, does not speak that she was to be
brought to Barshi under a false pretext. Yamunabai had earlier
gone to Barshi along with four chits, asking the same to be given
to four persons, who were present at the time of settlement of
marriage between Ujwala and appellant no.1, asking them to
come to Barshi. This witness was declared hostile and permission
to put questions in the nature of cross-examination was granted to
the APP. The learned APP, pursuant to such questioning, has been
able to bring on record that Yamunabai had given a contrary
version to the police when her statement was recorded. Though
this witness was declared hostile, she does not seem to be
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disposed to depose in favour of the appellants. In the cross-
examination on behalf of the appellants, it was suggested to her
that Ujwala used to tell her that everything was going on well.
She denied the same. She, however, stated that, appellant no.2
had brought up appellant no.1 like a son.
23 Vijaya (PW5) and her brother-in-law Deepak (PW6)
reside just adjacent to the house of the appellants. According to
Vijaya, the appellants were treating Ujwala well. She was
declared hostile and permission was granted to the APP to put
questions in the nature of cross-examination to her. However,
nothing which would advance the case of the prosecution could be
elicited from Vijaya. It was suggested that as the appellants were
her neighbours, she was giving false evidence to save them,
ignoring that she was actually the cousin of Ujwala. In her cross-
examination, it transpires that Ujwala and appellant no.1 used to
go together for a walk or a movie, and that, Ujwala used to be
assisted by appellant no.2 in doing the household work, going to
market, etc. Her evidence shows that Ujwala used to visit her
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house with appellant no.2. Even Deepak has stated that Ujwala
was never telling anything to Vijaya or him about any ill-
treatment. He also says that Ujwala used to visit their house with
appellant no.2. He also says that Ujwala used to go to the market,
that she also used to visit Bhagwati Mandir in the morning, and
that, she used to go with appellant no.1 to see a movie, once in a
week or fortnight. He categorically stated that Ujwala and
appellant no.1 were leading a good married life, and that,
appellant no.2 Vatsalabai was treating Ujwala like her daughter.
His evidence also shows that Ujwala was being taken by
appellants for medical treatment to Dr.Mrs.Yadav, a gynecologist.
This witness was questioned by the court apparently because she
gave evidence in favour of the appellants. However, such
questioning was about what the witness had seen and how Ujwala
actually caught fire. The answers given to the court questions are
not very relevant as the fact of suicide and the time and place
where Ujwala had caught fire, has not been disputed by the
appellants.
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24 Similarly, the evidence of Nagnath Rathod, Police Head
Constable (PW8), is also not significant, in as much as all that it
shows is that a requisition was sent for a Magistrate so that a
dying declaration of Ujwala could be recorded, but that, actually
by the time the Magistrate came, Ujwala had already died.
25 Mallikarjun Umerje (PW9) has given the various steps
taken by him in the investigation. In his cross-examination, a
number of omissions of the prosecution witnesses have been
brought on record and duly proved. Some of the glaring aspects
are that Nirmala had not stated about the illicit relations between
the appellants while lodging the FIR. Chabu Harke (PW2) had
not stated that he had gone to Barshi for marriage, and that,
Ujwala had told him that the appellants were ill-treating her, 'were
not allowing her to sleep with her husband', and the appellants
were sleeping together, etc. Chabu Harke also did not state before
the Investigating Officer that Rajini had told him that Ujwala and
her mother-in-law were not pulling on together, and that, Ujwala
and her husband were to be taken to Ahmedabad, etc. Chabu
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Harke had also not stated before the police that when he went to
Barshi, the appellants told him that Ujwala was not behaving
properly and that the appellants obtained a bond from her, etc.
Thus, all the important facts narrated by Chabu Harke in his
evidence were not at all stated by him when his statement was
recorded in the course of investigation, and as such, his evidence
consists of significant and glaring improvements. Even Rajini's
statement that appellant no.2 had told her to say that Ujwala was
to be taken to Ahmedabad and was to be brought to Barshi under
that pretext, is an improvement, in as much as Rajini had not
stated that to the Investigating Officer and this omission has been
duly proved.
26 It can be at once seen that there is no specific instance
of alleged cruel treatment given to Ujwala by the appellants in the
entire evidence of the prosecution. Nirmala's evidence does show
that Ujwala had told her that the appellants were treating her
with cruelty, and that, she was not getting the love of her husband
and of Vatsalabai, i.e., appellant no.2. However, these are
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extremely general averments, and not even one specific instance
which would reveal the type of cruel treatment that was given to
Ujwala, has been narrated by Nirmala. This is apart from the
question of the reliability of Nirmala's evidence.
27 It is difficult to hold the evidence of Nirmala and
Chabu Harke (PW2) as reliable. The reason for the ill-treatment,
as given by Nirmala and Chabu Harke, is the illicit relationship
between the appellants, of which Ujwala had become aware.
However, that there existed such relationship between the
appellants, is not at all established by any evidence. No
circumstances, suggesting that there was illicit relationship
between the appellants, are found in the evidence, and the
assertion of Nirmala and Chabu Harke to that effect - and that too
on the claim that 'Ujwala told them so' - is the only evidence in
that regard. How did Ujwala know this, or from what facts
observed by her, she had come to that conclusion, has not been
stated by any of these two witnesses. Moreover, it is clear that, in
the letters written by Ujwala to Nirmala, she did mention that
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everything was alright and had categorically stated that she was
happy. This has been admitted by Nirmala in the cross-
examination, but her only explanation in that regard is that these
letters had been written by Ujwala in the presence of appellant
no.2, and that, therefore, Ujwala had to write it that way. Now,
how did Nirmala come to know that the letters were being written
by Ujwala in the presence of appellant no.2, and that, therefore,
she could not write about the ill-treatment, is not clear. Nirmala
does not state that Ujwala had told her that she had been writing
such letters because of the watch kept by appellant no.2 on her.
The possibility of Nirmala having invented this version to
overcome the version in the letters of Ujwala, which is contrary to
the version narrated by Nirmala, cannot be overlooked. This is
particularly because the evidence of Vijaya and Deepak, who are
the immediate neighbours of the appellants and relatives of
Ujwala, also shows that Ujwala was leading a normal life with her
husband. So far as Chabu Harke is concerned, his evidence
consists only of improvements. Even the crucial facts on which
the prosecution case is based, viz., that Ujwala had told him that
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the appellants were ill-treating her, that she was not being allowed
to sleep with her husband appellant no.1, that appellant no.2 was
sleeping with appellant no.1, that the appellants were keeping her
without food, that they were not allowing her to go out, are all
improvements, and none of these facts were stated by him when
his statement was recorded in the course of investigation. Thus,
the evidence of Nirmala and Chabu Harke is not at all reliable. It
cannot be safely accepted.
28 Apart from this, there is a more fundamental question
that needs determination. It is, whether the facts stated by
Nirmala, even if accepted as correct, are sufficient to prove the
offence of cruelty, punishable under Section 498A of the IPC.
29 The concept of 'Cruelty' has been in existence in
Matrimonial Law, but such a concept was introduced into Criminal
Law for the first time by the Criminal Law (Second Amendment)
Act, 1983 and by the Dowry Prohibition (Amendment) Act, 1986,
by inserting certain sections in the Indian Penal Code and the
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Indian Evidence Act and by making consequential amendments to
the Code. Section 498A of the Indian Penal Code and Section
113A of the Indian Evidence Act were inserted by the Criminal
Law (Second Amendment) Act, 1983 and the relevant provisions
came in force w.e.f. 25.12.1983. By Dowry Prohibition
(Amendment) Act, 1986, section 304B was inserted in the Indian
Penal Code and section 113B of the Indian Evidence Act. The
relevant provisions were brought in force with effect from
19.11.1986. The reasons for introducing these provisions in the
Criminal Law were to effectively check the social evils of the
dowry system, the cruelty with which some married women were
being treated by their husbands and in-laws and the culmination
of such cruel treatment into suicides and dowry deaths of such
women. It was felt that these social evils could not be effectively
checked under the Criminal Law, as was existing before the
insertion of the said provisions, and that is why the relevant
provisions were introduced.
30 Though under the Matrimonial Statutes, the necessity
of defining the term `Cruelty' was not felt, when it was made an
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offence punishable under Section 498A of the Indian Penal Code,
the term `Cruelty' could not be left to be undefined for obvious
reasons. Criminal liability could not be fastened on the basis of a
vague or varying concept. The subjective element involved in the
concept of 'cruelty' needed to be reduced to the minimum, by
defining the said term and therefore, the term `cruelty' has been
defined in the explanation appended to Section 498A of the
Indian Penal Code, which reads as under :
"Explanation - For the purpose of this section,
"cruelty" means -
(a) 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) 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."
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31 The terms 'willful conduct', 'likely to' and 'injury' as
used in clause (a) and the terms 'harassment' and 'unlawful
demand' as used in clause (b) emphasize the scope, import and
the ambit of the said clauses. It is not every type of cruelty that is
made punishable under Section 498A of the Indian Penal Code.
The conduct, which is alleged to be cruel must be 'willful', and it
must be of such a gravity as is 'likely' to drive the woman to
commit suicide, or to cause grave injury to the life, limb or health.
The word 'likely' has been interpreted to show 'probability' and
stands on a higher footing than a mere 'possibility'.
32 In this case, the mere bald assertion that the
appellants had illicit relations between them and that, because
Ujwala had become aware of this relationship, she was being ill-
treated by the appellants, cannot be accepted as sufficient to hold
the appellants guilty of an offence punishable under Section 498A
of the IPC. The concept of cruelty envisaged in Section 498A of
the IPC needs to be judged objectively. The same cannot be
judged without knowing the specific instances of the alleged cruel
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treatment. An assertion that the victim was being treated with
cruelty, that she was harassed, that she was ill-treated, would not
be sufficient to enable the court to come to any conclusion, as to
the nature of the alleged cruel treatment and to be able to judge
whether it was of the type that is contemplated under Section
498A of the IPC. Vague and omnibus allegations can never give
an idea as to whether the conduct attributed to the appellants was
of such a nature, as was likely to drive Ujwala to commit suicide,
or to cause grave injury or danger to life, limb or health.
33 Though the fact that suicide has infact been committed
would be relevant in judging the evidence of cruelty, the cruelty
cannot be held as proved merely because suicide has, infact, been
committed.
34 I had an occasion to consider this question in Criminal
Appeal No.393 of 2001 (Sau.Vajabai Vikram Sonawane & Anr.
vs. The State of Maharashtra) and Criminal Appeal No.621 of
2011 (Santosh Vikram Sonawane vs. The State of Maharashtra
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reported in 2012 ALL MR(Cri) 1817, wherein, I had expressed
my view as follows :
"14. Though, the evidence of cruelty would be
relevant in determining whether the death could be
suicidal and the evidence of death being suicidal
would be relevant in judging the existence or extent
of cruelty, these aspects would not be conclusive. It
is because there are a number of factors, which
may lead to a person deciding to take his own life.
Causes of suicide is a matter of study for the
psychologists. Experience shows that the people who
suffer severe and great miseries and sorrows do not
end their lives, but people, who are required to
undergo comparatively minor sufferings do, at times,
commit suicide. The level of tolerance of various
persons differs and further, the causes of depression,
which leads to suicide may be very many.
Therefore, the conclusion of cruelty cannot be
drawn merely from the fact that suicide has in fact
been committed, and conversely, the conclusion that
the death was suicidal also can not be drawn,
merely from the fact that some cruelty was meted
out to the deceased. Though these aspects may be
relevant, they certainly would not be conclusive."
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35 In the absence of satisfactory evidence about the cruel
treatment given to Ujwala, and in the light of some evidence
indicating the position to be contrary, that Ujwala was being
treated with cruelty cannot be accepted, merely from the fact that
she indeed committed suicide.
36 I have carefully gone through the impugned judgment.
The learned Sessions Judge has categorically held that the
allegation leveled by Nirmala that there were illicit relations
between the appellants was not believable. The learned Sessions
Judge observed that though the FIR lodged by Nirmala was not
sufficient to discard this evidence as there was a possibility of the
police not being ready to record such an allegation, still, since
appellant no.2 had brought up appellant no.1 as her son right
from his childhood, such allegation was not at all believable.
Infact, the learned Sessions Judge observed that because of the
hatred for the appellants, Nirmala might have exaggerated the
matter while giving evidence. It may be recalled that the
existence of illicit relationship between the appellants was the
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basis of the prosecution case. It was because of such relationship
and Ujwala becoming aware of the same, that she was ill-treated,
is the prosecution case. If that was not believable, or was not
believed, the motive for the cruel treatment said to have been
given to Ujwala, goes away. The learned Judge has categorically
come to the conclusion that the prosecution had failed to prove
the illicit relationship between the appellants and the fact that it
was because of the same, that Ujwala was being ill-treated.
37 One wonders, if this aspect is disbelieved, what was
the basis for claiming that Ujwala was ill-treated. The learned
Sessions Judge has discussed the evidence of Chabu Harke and
has placed reliance on it observing that he had no enmity with the
appellants and had no reason to give false evidence against them.
This is surprising because the learned Judge has observed that
Nirmala had an apparent hatred for the appellants. If this was so,
why Chabu Harke, who is the uncle of Ujwala, would not have a
similar hatred and grudge, and why the learned Judge who
accepts hatred for the appellants on the part of Nirmala, discards
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the same on the part of Chabu Harke, is difficult to understand.
Moreover, while appreciating Chabu Harke's evidence, the learned
Judge has simply ignored the improvements made by him in his
evidence.
38 The learned Judge has discarded the evidence of
Vijaya and Deepak which indicated that Ujwala was leading a
happy married life. The learned Judge noted that according to
these witnesses, appellant no.1 and Ujwala used to go for a walk,
used to go for a movie etc., but observed that the evidence of
these witnesses could not be accepted 'at face value.' He observed
that none of these two witnesses stated that Ujwala ever told them
that she was leading a very happy life and that the appellants
were treating her very well. The learned Judge observed that the
'absence of such a positive statement from these two witnesses
ought to be noted.' This approach of the learned Judge does not
appear to be proper. In other words, the learned Judge did not
require these witnesses who were the neighbours of Ujwala and
also her relatives, to positively state that Ujwala was not being
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treated well, but was of the view that, 'that she was not being
treated well could be easily presumed because the witnesses did
not state that Ujwala had told them that she was leading a happy
life.' Moreover, what the learned Judge ignored is that, even if it
is assumed that Ujwala was not leading a 'very happy life' (a
phrase used by the learned Judge), that would not mean that she
was being treated with cruelty by the appellants. In my opinion,
the discarding of the evidence of these two witnesses simply
because it did not support the prosecution version, was not proper.
39 The learned Judge also observed that though the
evidence indicated that Ujwala was being taken to some doctors
for medical treatment, still, that would not show that she was
being treated properly. The learned Judge also noted that
appellant no.2 was asking Ujwala to appear for the 12 th standard
examination, but did not accept that this showed that Vatsalabai
did have affection for Ujwala, and that, she cared for her. The
learned Judge observed that appellant no.2 Vatsalabai might have
taken this stand to hide her real feelings. He considered it
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possible that in order to falsely show her concern for Ujwala,
appellant no.2 Vatsalabai had spoken about Ujwala appearing for
the 12th standard examination.
40 While holding that cruelty was satisfactorily
established, the learned Judge has relied on the fact that some
writing had been obtained from Ujwala by the appellants.
Significantly, no such writing was produced before the court. The
evidence shows that the writing was in the nature of an assurance
given by Ujwala to behave properly. Undoubtedly, if without any
fault of Ujwala, she was forced to execute such a writing, she
would feel humiliated and distressed. However, what was the
matter, and what for the writing was taken, is not at all clear; and
therefore, it would be hazardous to come to a conclusion that
obtaining the writing from Ujwala was was an act of cruelty.
Apparently, even Nirmala has attempted to suppress some facts
and has abruptly stated about giving some writing signed by her,
Nirmala and others in favour of the appellants, without disclosing
what was the occasion to give such writing. What was the written
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matter, as aforesaid, has not been brought on record. According
to the appellants, no such writing was obtained. However, even
assuming any such writing was obtained, without knowing the
circumstances in which it was obtained, and without knowing the
contents of the writing, it cannot be assumed that the act of
obtaining such writing constituted cruelty. The learned Judge has
referred to the evidence of Nirmala and Chabu Harke to the effect
that, the appellants were threatening that divorce would be given
to Ujwala and the bond had been given in that connection. As
aforesaid, without knowing what was the grievance of the
appellants against Ujwala, and why the appellants threatened that
Ujwala would be given a divorce, no conclusion of the appellants
having treated Ujwala with cruelty can be drawn. An intention to
have the marriage dissolved or the declaration thereof, cannot, by
itself, amount to cruelty, punishable under Section 498A of the
IPC.
41 The learned Judge has not viewed the evidence in
proper perspective and in accordance with law. The learned
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Judge was greatly influenced by the fact that Ujwala had
committed suicide, and was of the view that she must have done so
because the appellants had treated her badly. It is by presuming
this, that he has looked at the evidence, trying to derive support to
this theory. For instance, when it was pointed out on behalf of the
appellants that the theory of some chits having been sent with
Yamunabai was not proved as the chits had not been collected
during evidence, the learned Judge observed that it was a flaw in
the investigation. He observed that the 'witnesses could not be
disbelieved because the Investigating Officer failed to carry out
the investigation properly.' The learned Judge did not consider
that the failure to seize or produce the chits could be also due to
the fact that no such chits ever existed. Inspite of the fact that
Chabu Harke's evidence was full of improvements, the learned
Judge has accepted the same as true, without even discussing the
improvements and the effect thereof on his evidence. About the
bond executed by Nirmala and others, not coming before the court
also, the learned Judge has blamed the investigating machinery,
but has not discussed whether bond had infact been given, and if
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so, what were the contents of the bond and what was the occasion
to give such bond. He has concluded that the very circumstance
that Ujwala was made to give a bond indicates that she was not
leading a happy married life. What the learned Judge overlooked
is that the question was not whether Ujwala was happy, but the
question was whether she was being treated with cruelty by the
appellants, or any of them. Without knowing the contents of the
bond or the circumstances in which Ujwala, Nirmala and others
executed the same, the learned Judge concluded that 'blame of
improper behaviour was falsely being put by the appellants on
Ujwala.' The only reason to hold that the blame could not be put
on Ujwala appears to be the fact that Ujwala actually committed
suicide. Such approach is entirely unscientific.
42 The learned Judge also observed that Ujwala had
stayed at her mother's house for about four months and this
indicates that she was not happy. The learned Judge poses the
following question - 'why Ujwala should suddenly commit suicide ?'
and answers it by saying that she was being treated with cruelty
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till 25th January 1993, and when she returned to Barshi on 1 st
June 1993, the cruelty continued. He observed that ultimately
Ujwala and her relatives were forced to give writing on 6 th June
1993. The learned Judge observed that Ujwala 'must have been
treated more badly by the appellants after 6 th June 1993 for no fault
of hers' and further observed that, that she had been forced to give
such a writing must have given her a mental shock, it must have
destroyed her honour and self esteem, and that, it was a cruel
treatment to any girl. It is easy to see that all these are nothing
but conjectures and surmises, and not findings based on evidence,
or inferences that could be drawn from the evidence. All these
conjectures and surmises are based on the fact that ' since suicide
has been committed, there must be somebody who is responsible for
the same , and that, such person needs to be blamed
. Infact, what
had happened before the death of Ujwala was not clear, is evident
from the observations made by the learned Judge himself, which
are as follows :
"Whatever it may be the fact remains that both
the accused in furtherance of their common
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intention treated Ujwala with cruelty during her
married life. The cruelty was of such a nature
that Ujwala committed suicide when the living
became unbearable. Her mother and relatives
were made to execute a bond and then were
sent back to Ashti and she alone was left in
the hands of the two accused thereafter. She
must have predicted that she would be treated
with more cruelty thereafter. Actually she must
have been treated with cruelty before
committed suicide because she was found alone
she
in the room when she should have been in the
ordinary course with the husband."
43 There is no basis for such conclusions, which are
merely the flights of imagination of the learned Judge. Moreover,
the observations in the last sentence, viz., that, she was found
alone in the room when she should have been in the ordinary course
with her husband are difficult to understand as the evidence
indicates that Ujwala and appellant no.1 were sleeping together,
but Ujwala got up, went in some other room, bolted it from inside
and set herself on fire.
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44 The finding of the appellants being guilty of the
alleged offence, as recorded by the learned Sessions Judge, is
based only on conjectures and surmises. There was absolutely no
evidence to prove the offence of cruelty. The whole basis of the
reasoning of the learned Sessions Judge is that since Ujwala had
committed suicide, the appellants must have treated her with
cruelty. He has viewed all the pieces of evidence from this angle
only. He has ignored the weaknesses in the case of the
prosecution. He has overlooked that the basis for cruelty, as per
the prosecution case, was the fact of illicit relationship between
the appellants, which had become known to Ujwala, and though
he discarded the same, he substituted a new case for the
prosecution, viz., that the cruel treatment was for some other
reason, and that, it primarily consisted of expressing a desire that
the marriage between appellant no.1 and Ujwala should be
dissolved, and taking a bond from Ujwala for proper behaviour.
The way the observations have been made, leave no manner of
doubt that the learned Sessions Judge was of the view that some
reason for the suicide of Ujwala must be found out, and that, since
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the appellants could not explain this fact, they should be held as
guilty. It would be appropriate here to quote from a judgment
delivered by the Kerala High Court.1
"Vagaries of human mind cannot be fathomed with
precision, and one may act on sudden impulses, and
suicidal proclivities cannot be explained in many
cases. If the accused failed to explain as to what else
would have prompted his wife to end her life in a
jiffy, it is no premise to presume that she would have
chosen to adopt the extreme step as she was subjected
to any humiliation or ill-treatment by her husband."
45 The appreciation of evidence, as done by the learned
Sessions Judge, and the conclusion arrived at by him, is clearly
contrary to law. This was a case where the appellants ought to
have been acquitted.
46 The Appeal is allowed.
The impugned judgment and order is set aside.
The appellants are acquitted. Their bail bonds are
discharged.
Fine if paid, be refunded to them.
(ABHAY M. THIPSAY, J.)
1 State of Kerala vs. Mohanan Pillai, 1991(1) KLJ 359
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