Vikas Jayram Date vs State Of Maha
2016 Latest Caselaw 3931 Bom

                                                                     cria281.03
                                            1


                                            




                                                                          
          IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 

                                   BENCH AT AURANGABAD




                                                  
                         CRIMINAL APPEAL NO.281 OF 2003




                                                 
     Vikas s/o Jayram Date,
     Age-32 years, Occu:Grossary Shopkeeper,
     R/o- Beed-Sangvi, Tq-Ashti,
     Dist-Beed.




                                         
                                     ...APPELLANT
                                    (Orig. Accused) 
                             
            VERSUS             

     The State of Maharashtra,
                            
     Through Police Station Ashti,
     Tq-Ashti, Dist-Beed.   
                                     ...RESPONDENT
      

                          ...
        Mr. S.S. Chaudhari Advocate for  Appellant.
   



        Mrs. V.N. Patil (Jadhav), A.P.P. for  
        Respondent - State.       
                          ...       





                   CORAM:   A.I.S. CHEEMA, J.

        DATE OF RESERVING JUDGMENT  : 28TH JUNE,2016.  





        DATE OF PRONOUNCING JUDGMENT: 19TH JULY, 2016.
                                      

     JUDGMENT :

1. The Appellant-accused (hereafter referred

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as "accused") was tried along with his parents and

brother, in Sessions Case No.25 of 2002 before

IVth Ad-hoc Additional Sessions Judge at Beed and

on 21st March 2003, he has been convicted for

offence under Section 498-A of the Indian Penal

Code, 1860 ("IPC" in brief) and Section 306 of

IPC. The other accused were acquitted. Thus, this

Appeal.

2. In brief, the case of the prosecution is

as under:-

A). On 12th November 2011 complainant Subhash

Bhujbal (PW-1) filed F.I.R. (Exhibit 21) with

Ashti Police Station in District Beed. In the

F.I.R., he gave particulars regarding his family

and that victim Sarita @ Savita was his daughter

who was married to the accused Vikas 8-9 years

before the incident, at Madalmohi, Tq-Georai. He

informed that she was treated well for about one

year and thereafter when the daughter was coming

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to his place, she was informing that her husband

was asking for Rupees Twenty Thousand for putting

up a cloth shop and that she should get the amount

from her parents. With the object that the

marriage should not be in trouble, he had given

Rupees Twenty Thousand, in front of his wife to

the victim. The victim gave birth to son Nitin who

is now six years old and daughter Priya, who is

now four years old. She was then treated well for

about two years. Thereafter when the daughter

came, she told his wife Rukhminbai (PW-3) that her

husband and other accused are consistently asking

for money and she is being beaten and not provided

food. The complainant explained to his daughter

and sent her back. Three months before the

incident, complainant had gone to the place of his

daughter and she stated that her husband is asking

for Rupees Twenty Thousand for construction

purposes and has been beating her and making her

starve. Listening this, the complainant told

accused Vikas that he will make arrangement for

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money in 4-5 months and she should be treated

well. The F.I.R. further recorded that thereafter

the accused along with victim had come to his

place at Madalmohi, at which time he provided them

clothes. Accused inquired from complainant as to

what happened of the money and why it was not

given till now. Accused stated that the same

should be given in two months otherwise regarding

his daughter he should see. Complainant told him

that he will make arrangement for money but he did

not have the same immediately. The victim also

told at such time to the complainant that he

should give money or else the accused persons were

troubling her. The complainant explained to his

daughter and sent her back to Beed-Sangvi. It is

stated that on 12th November 2001 phone call was

received at the place of Suresh Janardhan Vidhate

(PW-5) that the victim was ill and taken to Civil

Hospital at Ahmednagar. Thereafter the complainant

along with his wife and relatives, went by Jeep

and reached the hospital at 1.30 p.m. It was seen

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at that time that the victim has already died and

her body was in postmortem room. After postmortem,

she was brought to Beed-Sangvi and last rites were

performed. Complainant came to know that she had

consumed some poisonous medicine and was taken to

Ahmednagar Civil Hospital where under treatment

she expired. Thus, the complaint was filed.

B).

PSI Adinath Budhwant (PW-7) had, on 12th

November 2001 taken up investigation-cum-inquiry

of A.D. No.35 of 2001 which had been registered.

He prepared spot panchnama Exhibit 25. On

receiving the complaint of complainant Subhash, he

registered offence at Crime No.135 of 2001.

Statements of witnesses were recorded. The accused

were arrested. Postmortem report was collected.

Viscera of the victim was taken from the doctor

and sent to Chemical Analyzer. C.A. Reports were

received. On investigation being completed,

charge-sheet came to be filed.

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3. The accused persons pleaded not guilty in

the trial Court. Their defence was of total

denial. Evidence of seven witnesses was brought on

record. Thereafter the trial Court convicted only

the present Appellant - accused No.1 Vikas and

acquitted the other accused persons.

4. I have heard learned counsel for both

sides. Learned counsel for the Appellant - accused

submitted that in this matter, the postmortem

report recorded that the death of the victim took

place due to "cardio respiratory arrest due to

acute pulmonary edema". According to him, the C.A.

report shows that no poison was detected in the

viscera and thus according to him, the prosecution

failed to prove that the victim committed suicide

or that she suffered any homicidal or unnatural

death. According to him, prosecution failed to

prove that the victim committed suicide. It has

been argued that the evidence of the witnesses did

not prove cruelty and the trial Court wrongly

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convicted the accused.

5. The learned A.P.P. submitted that even if

it was to be said that offence under Section 306

of IPC is not established, still there is evidence

for offence under Section 498-A of IPC as there

was evidence that the accused was consistently

demanding money. The submission of the learned

A.P.P. is that the complainant as well as his wife

and uncles of the victim deposed in the matter

which shows that the victim was being subjected to

cruel treatment.

6. Looking to the submissions made before

me, it would be appropriate to first consider the

evidence of the doctor. In this regard, PW-6

Dr. Sanjiv Ketkar was examined. His evidence is

that on 12th November 2001 he had carried out

postmortem on the victim. In the postmortem

conducted, he deposed that they recorded their

opinion that the cause of death was due to

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"cardio respiratory arrest due to acute pulmonary

edema". He has proved the postmortem notes at

Exhibit 32. In cross-examination, he admitted that

the victim did not have any external injuries and

there were no internal injuries to the brain. His

evidence is that viscera was preserved in this

case for chemical analysis and it was sent,

through the police, to the Chemical Analyzer. The

cross-examination of this doctor shows that they

received C.A. Reports from Chemical Analyzer and

as per the C.A. Reports, no poison was detected in

viscera preserved or the stomach contents and

pieces of liver, spleen blood and no poison was

detected from stomach wash sample. In the evidence

of Investigating Officer PSI Adinath Budhwant (PW-

7), C.A. Reports have been marked at Exhibit 36

and 37.

7. Thus, the medical evidence is that the

victim died due to "cardio respiratory arrest"

which was caused by acute pulmonary edema. Mosby's

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Medical Dictionary, IInd Edition, 1990 has

explained "pulmonary edema" as below:

"The accumulation of extravascular fluid in lung tissues and alveoli, caused most

commonly by congestive heart failure and also occurring in barbiturate and opiate poisoning, diffuse infections, hemorrhagic

pancreatitis, renal failure, and after a

stroke, skull fracture, near drowning, the inhalation of irritating gases, and the rapid administration of whole blood,

plasma, serum albumin, or intravenous fluids. In congestive heart disease serious fluid is pushed back through the pulmonary

capillaries into alveoli and quickly enters

bronchioles and bronchi."

. Considering the above meaning of

"pulmonary edema", it would appear that it is

accumulation of extravascular fluid in lung

tissues in alveoli, caused most commonly by

congestive heart failure. It also appears that it

occurs in case of barbiturate and opiate

poisoning. However, in the present matter, the

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evidence of doctor and the C.A. Reports do not

show that any poison was detected in viscera

preserved or in the stomach or contents of stomach

and pieces of liver or the stomach wash.

8. The trial Court in Para 14 of its

Judgment, referred to the inquest panchnama

Exhibit 23 where Panchas had opined that cause of

death was due to consumption of poison. In fact

the Panchas were told that a poisonous medicine

went in the stomach of the victim and they

recorded that death "may be" due to such poisonous

medicine but real cause was to be ascertained. The

trial Court was aware that the doctor has given

evidence that death was due to "cardio respiratory

arrest due to acute pulmonary edema". However, the

trial Court referred to Column No.21 of the

postmortem report where it was mentioned that in

the stomach contents, there was 200 c.c. blackish

and coffee coloured fluid with abnormal smell

present. The trial Court relied on this evidence

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ignoring the evidence of the doctor that no poison

was detected in the stomach wash. The trial Court

put the burden on the accused when it observed

that there was no suggestion to the doctor that

cause of death was due to any disease or natural

or any other reason. It being criminal

prosecution, it was the responsibility of the

prosecution to bring concerned medical evidence on

record to prove that the death was unnatural. The

burden could not be shifted on the accused to

prove that death was natural or due to cause of

any disease. Trial Court brushed aside the C.A.

Reports by observing that there are various

reasons for not detecting poison in viscera. Trial

Court did not elaborate as to on what basis such

statement was made. It simply referred to evidence

of PW-1 Subhas, PW-3 Rukhmanbai, PW-4 Ram and PW-5

Suresh that they had stated that the victim

committed suicide due to ill-treatment and that it

was mentioned in the F.I.R. that victim had

consumed poison. Relying on Section 106 of the

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Indian Evidence Act, the trial Court put the

burden on the accused that they had not explained

the cause of death. For such reasons, the trial

Court concluded that the victim had committed

suicide.

9. I do not find that such reasons recorded

by the trial Court for concluding that the victim

committed suicide, could be accepted. There is no

witness stating that the victim consumed any

particular poisonous medicine. From the spot, no

empty bottle or can or any other container is

seized. It is for the prosecution to prove beyond

reasonable doubt that victim suffered unnatural

death. The doctor PW-6 Sanjiv Ketkar, in his

evidence, even after seeing the C.A. Reports, did

not elaborate as to what other could be the cause

for the 'respiratory arrest" if poison had not

been detected in the viscera or stomach contents.

Looking to the meaning of "pulmonary edema", which

I have reproduced above, there could be various

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reasons for the "pulmonary edema" and it causing

the respiratory arrest.

10. For above reasons, I find that the

prosecution failed to establish that the victim

died due to consumption of poison and that she had

committed suicide.

11.

Now before discussing the evidence

brought on record by the prosecution, it would be

appropriate to refer to Judgment of Hon'ble

Supreme Court in the matter of Bhairon Singh vs.

State of M.P., A.I.R. 2009 Supreme Court, 2603.

The Hon'ble Supreme Court, in Para 2 of its

Judgment, referred to the question which arose as

follows:-

"2. The question that arises for consideration in this appeal by special leave is: in a case where accused has been acquitted of the offence punishable under Sections 304-B and 306, IPC, and the death

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of wife is neither homicidal nor suicidal

but accidental, whether the oral evidence of witnesses about what the deceased had told

them against the accused about the treatment meted out to her is admissible under Section 32(1) of the Evidence Act to sustain

conviction under Section 498-A, IPC?"

. The Hon'ble Supreme Court referred to the

law with reference to Section 32(1) of the Indian

Evidence Act, 1872 with reference to cases in

which statement of relevant fact by person who is

dead or cannot be found, etc., becomes admissible.

After considering the law as regards Section 32(1)

of the Indian Evidence Act, Hon'ble Supreme Court

referred to the facts of that matter in Para 6 of

its Judgment, and in Para 11 of the Judgment it is

observed as under:-

"11. The moot question is: whether the statements attributed to the deceased could be used as evidence for entering upon a finding that the accused subjected Ranjana Rani @ Raj Kumari to cruelty as contemplated

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under Section 498-A, IPC. In our considered

view, the evidence of PW-4 and PW-5 about what the deceased Ranjana Rani @ Raj Kumari

had told them against the accused about the torture and harassment is inadmissible under Section 32(1) of the Evidence Act and such

evidence cannot be looked into for any purpose. Except Section 32(1) of the Evidence Act, there is no other provision under which

the statement of a dead person can be looked into in evidence. The statement of a dead

person is admissible in law if the statement is as to the cause of death or as to any of

the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has

been deposed by PW-4 and PW-5 has no connection with any circumstance of

transactions which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was

accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of

PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32(1) of the Evidence Act does not get attracted."

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12. Looking to the observations of the

Hon'ble Supreme Court in that matter of Bhairon

Singh, cited supra, when present matter is

considered, here homicide or suicide or that death

was unnatural is not proved. As such what the

victim told the witnesses in present matter

regarding ill-treatment after going to her parents

place, would have to be treated as inadmissible

under Section 32(1) of the Evidence Act as it did

not relate to cause of her death or circumstances

of the transactions which resulted in her death.

Thus the evidence cannot be looked into for any

purposes.

13. For the purposes of Section 498-A of IPC,

what is required to be proved by the prosecution

is that the husband or relatives of the husband

subjected the woman to cruelty. The evidence of

the witnesses examined is thus required to be seen

for the limited purpose of consideration whether

the evidence shows any direct or personal

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knowledge of these witnesses of cruelty taking

place in their presence.

14. I thus, proceed to examine the evidence

of PW-1 complainant Subhash, his wife PW-3

Rukhminbai and PW-4 Ram and PW-5 Suresh, uncles of

the victim. While referring to their evidence, I

will not refer to their evidence as to what the

victim had told them when she was coming to the

parental home.

15. The admissible evidence of PW-1 Subhash

shows that the victim was married to the accused

8-9 years back. He gave the date of marriage as

26th April 1992 in the cross-examination. There is

no dispute regarding the fact that from the

marriage the victim got two children. The evidence

of PW-1, after referring to what victim had told

him regarding demand, mentions that his daughter

and accused No.1 had come to Madalmohi and he had

paid Rupees Twenty Thousand to his daughter and

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then according to him, she paid the same to the

accused. His evidence is that he paid the amount

in presence of his wife. In this regard, evidence

of PW-3 Rukhminbai shows, after referring to the

demand informed by the daughter, that her husband

had handed over Rupees Twenty Thousand to the

victim in her presence.

16.

The evidence of the complainant (PW-1) is

that three months before incident, he had gone to

the village of accused to meet his daughter.

According to him, at the time of said visit, he

had explained to the accused that he did not have

money and would arrange the money within 4-5

months. His evidence is that his daughter and

accused had come to their village for "Dhonde

Jewan" and accused had asked at that time

regarding the amount of Rupees Twenty Thousand and

he had stated that he did not have the money at

that time. Complainant deposed that accused told

at that time, he will not allow the complainant to

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speak if any bad thing happened against his

daughter. PW-3 Rukhminbai also claimed that her

husband had gone to meet the victim 2-3 months

before the incident and in "Adhik Mass" the victim

and accused had come for "Dhonde Jewan". She

deposed that at that time, they convinced the

accused not to ill-treat the victim and provided

clothes to the victim and her husband and

children.

17. Then there is evidence of these witnesses

of getting information on 12th November 2001 of

victim being admitted in the hospital and they

going to hospital. PW-4 Ram and PW-5 Suresh, the

uncles of the victim, also corroborated the PW's 1

and 3 regarding the victim informing about the

demands and alleged ill-treatment.

18. Although the witnesses deposed about

victim informing on various occasions regarding

demand of money, particulars regarding what was

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the exact ill-treatment stated, is not deposed to

by the witnesses. If the admissible part of their

evidence regarding what happened in their presence

is considered, it does not show that there was any

such conduct which could be calculated to be

cruelty taking place in their presence. Regarding

the giving of money to the accused, if the cross-

examination of PW-3 Rukhminbai is perused, she

deposed that the amount of Rupees Twenty Thousand

was paid to the accused through her daughter in

1996. This would be about five years before the

incident. Her evidence is that the amount was

given to the accused as hand loan. In fact, even

regarding the subsequent demand allegedly made by

the accused, even that she says was asked as hand-

loan.

19. Thus, ignoring the evidence of these

witnesses regarding what the victim told them, as

inadmissible [as the statement of the victim was

not as to the cause of her death or any of the

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circumstance of the transaction which resulted in

her death] and considering the admissible evidence

as to incidents which took place in their presence

the same does not spell out cruelty as explained

in Section 498-A of IPC.

20. For such reasons, I am unable to concur

with the trial Court that offence under Section

306 of IPC or that offence under Section 498-A of

IPC was established.

21. For above reasons, I pass the following

order:

0 R D E R

(I) The Criminal Appeal is allowed.

(II) The conviction and sentence of the Appellant-accused under Section 498-A

and 306 of Indian Penal Code, 1860 is quashed and set aside.

              (III)                  The   Appellant-accused   is 





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acquitted of the offence punishable

under Sections 498-A, 306 of Indian Penal Code, 1860.

(IV) The bail bonds of the Appellant- accused are cancelled.

[A.I.S. CHEEMA, J.] asb/JUL16