Chandrashekhar Tatoba Choudhary ... vs State Of Maharashtra
2017 Latest Caselaw 5981 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 238 OF 2000



 1) Chandrashekhar Tatoba Choudhary,
     Aged 34 years, Occupation - Private, 
     (now in Jail)

 2) Tatoba s/o Rajeshwar Choudhary,
     Aged 67 years, Occupation - Nil, 

 3) Sau. Anusayabai w/o Tatoba Choudhary,
     Aged 57 years, Occupation - Household, 
     All R/o Rajur, Tq. Zari-Jamni, 
     District Yavatmal.

 4) Sau. Vimal w/o Punjaram Pansud,
     Aged 45 years, Occupation 
     R/o Kapsi, Police Station Bela, 
     Tq. Adilabad, District Adilabad.

 5) Sau. Chhabutai w/o Babanrao Bhoyar,
     Aged 35 years, Occupation - Household, 
     R/o Mahalaxmi Wada, Adilabad, 
     Tq. & District Yavatmal.

 6) Sau. Maya w/o Ganesh Bhoyar,
     Aged 25 years, Occupation
     R/o Akoli, Tahsil Pandharkawada, 
     District Yavatmal.

 7) Sau. Jija w/o Babanrao Nakhate,
     Aged 22 years, Occupation
     R/o Kawatha Kapeshwar, Tahsil-Arni,
     District Yavatmal.                               ....       APPELLANTS




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                   VERSUS


 The State of Maharashtra, 
 through P.S.O., P.S. Mukutban, 
 District Yavatmal.                                           ....       RESPONDENT


 ______________________________________________________________

            Shri R.B. Gaikwad, Advocate for the appellants, 
            Shri A.V. Palshikar, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

DATED : 11 th SEPTEMBER, 2017

ORAL JUDGMENT :

The appellants are challenging the judgment and order

dated 25-7-2000 in Sessions Trial 92/1999, delivered by the learned

IInd Additional Sessions Judge, Yavatmal, by and under which the

appellants are convicted of offence punishable under Section 498-A

read with Section 34 of the Indian Penal Code and are sentenced to

suffer rigorous imprisonment for two years and to payment of fine of

Rs.5,000/-.

2. The appellants (hereinafter referred to as the "accused")

faced trial for offence punishable under Section 498-A and Section 306

and Section 304-B read with Section 34 of the Indian Penal Code.

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However, the appellants are acquitted of offence punishable under

Section 306 and Section 304-B of the Indian Penal Code.

3. Heard Shri R.B. Gaikwad, learned Advocate for the

accused and Shri A.V. Palshikar, learned Additional Public Prosecutor

for the respondent/State.

4. Shri R.B. Gaikwad, learned Advocate would urge that the

judgment impugned is manifestly erroneous and that the prosecution

has failed to establish the essential ingredients of Section 498-A of the

Indian Penal Code. The prosecution of the accused, in the submission

of the learned Advocate, is a classical and glaring illustration of abuse

of process of law. Relatives of the husband who are not even residing

with the husband, have been roped in and unfortunately are convicted

alongwith the husband without there being an iota of evidence

attributing any role or overt act to the relatives of the husband, is the

submission. Shri R.B. Gaikwad, learned Advocate would further urge

that even if the words penned by the deceased in the notebook is

treated a suicide note, the said note only states that the deceased was

ending her life due to the ill-treatment meted out by the father-in-law

and mother-in-law of the deceased (accused 2 and accused 3

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respectively). Shri R.B. Gaikwad, learned Counsel would urge that

there is not even a whisper in the suicide note attributing any specific

ill-treatment to the father-in-law and mother-in-law of the deceased or

to any ill-treatment or culpability to other accused including the

husband. The learned Advocate for the accused would then urge, that

even if the evidence of the prosecutrix is taken at face value, despite

the inter se discrepancies and inconsistencies, the prosecution has not

established charge under Section 498-A of the Indian Penal Code. He

would contend that P.W.1 the mother of the deceased has made a bald

allegation that the accused 1 Chandrashekhar demanded money from

her to secure employment. This solitary, stray, blissfully vague

allegation is the only allegation as regards an unlawful demand, is the

contention. The learned Advocate for the accused would urge that

even if the prosecution evidence is accepted in toto, cruelty within the

meaning of Explanation (a) of Section 498-A of the Indian Penal Code

is not proved. 'Cruelty' within the meaning of Explanation (b) of

Section 498-A of the Indian Penal Code also cannot be inferred on the

basis of a vague and sketchy allegation that amount, that too an

undisclosed sum, was demanded to enable the accused 1/husband to

secure employment. The rest of the allegations, according to the

learned Advocate Shri R.B. Gaikwad, at the best would indicate normal

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wear and tear of marital life and the usual differences of opinion

amongst members of family residing together. The learned Advocate

would hasten to add that in so far as accused 4 and accused 7, it is not

in dispute that they were not residing with accused 1 to 3 and the false

implication is obvious.

5. Shri A.V. Palshikar, learned Additional Public Prosecutor

for the respondent would support the judgment and order impugned.

6. Before I embark upon consideration of the rival

submissions, I must record an extremely disturbing feature of the

judgment impugned. The accused faced trial for offences punishable

under Sections 304-B, 306 and 498-A read with Section 34 of the

Indian Penal Code. The learned Sessions Judge while acquitting the

accused for offences punishable under Sections 304-B and 306 of the

Indian Penal Code has recorded a categorical finding that suicidal

death is not proved. The learned Sessions Judge observes in paragraph

47 of the judgment that in absence of strict medical proof about the

cause of death, the prosecution has failed to prove its case of offences

punishable under Sections 304-B and 306 of the Indian Penal Code.

While considering the charge under Section 498-A of the Indian Penal

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Code, the learned Sessions Judge has recorded a finding that

irrespective of the medical evidence suicidal death is proved in view of

the evidence of P.W.1, P.W.2 and P.W.3 and the suicide note. In

essence, the learned Sessions Judge has held that the death is suicidal

for the purpose of Section 498-A of the Indian Penal Code and is not

suicidal for the purpose of Sections 304-B and 306 of the Indian Penal

Code. I do not see any rational, muchless logic in the reasoning

adopted and the inconsistent findings are inexplicable.

7. I, however, would proceed to analyze the prosecution

evidence on the premise that the death is suicidal. It is too well

settled, inter alia by the judgment of the the Hon'ble Supreme Court in

the case of Bhupendra vs. State of Madhya Pradesh reported in

(2014) 2 SCC 106, that even in the absence of the viscera report or

the report of the chemical analyzer, the finding that the death is

suicidal can be recorded on the basis of the oral evidence, clinical

examination and other relevant material. In the present case, the fact

that the deceased committed suicide by consuming poison is proved by

the ocular evidence, post-mortem examination report and the suicide

note. In view of the overwhelming evidence on record, I have no

hesitation in recording a finding that the death was suicidal.

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Pertinently, even the defence has not seriously contended that the

death is not suicidal.

8. The State is not challenging the acquittal of the accused

under Section 304-B and Section 306 of the Indian Penal Code. The

only question which falls for consideration is whether the prosecution

has proved offence under Section 498-A of the Indian Penal Code

beyond reasonable doubt.

9. Section 498-A of the Indian Penal Code 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" 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.)"

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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.

10. 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 other statutory provisions including the cruelty

necessary to establish a matrimonial misconduct or offence.

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11. It is too well settled, that in order to bring home charge

under Section 498-A of the Indian Penal Code, the nature and extent

of cruelty which the prosecution is required to establish is statutorily

defined. Cruel conduct, which may be a matrimonial offence or which

may provide a ground to obtain some relief under the matrimonial law

or personal law may not necessarily constitute cruelty within the

meaning of Explanations (a) (b) of Section 498-A of the Indian Penal

Code.

12. The evidence on record will have to be tested on the anvil

of the statutory definition of cruelty.

13. P.W.1 Chhabutai is the mother of the deceased. She states

that Aruna visited her parental house on the occasions of Akhadi,

Rakshabandhan, Diwali and Sankrant. She states that when Aruna

visited her on the occasion of Rakshabandhan, she disclosed that the

accused Chandrashekhar is demanding money to secure employment.

She has further deposed that accused 3 Anusaya used to add excess

salt, water, chilly, etc. to the meals cooked by the deceased and then

used to complain to accused 1 Chandrashekhar that the deceased is not

a good cook. P.W.1 states that the accused used to beat Aruna. P.W.1

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further deposes that whenever accused 4 to accused 7 used to visit

accused 1 Chandrashekhar, they used to tease Aruna. The witness

specifically mentions an incident which occurred on 09-1-1998. She

states that the deceased visited her house on the occasion of Sankrant

and during her stay told that the accused 1 Chandrashekhar asked her

to bring amount from her parents to secure employment. P.W.1

further states that the deceased also narrated the ill-treatment meted

out to her by accused 2 to accused 7. The witness has not mentioned

most of the details as regards the ill-treatment in the first information

report (Exhibit 53) and the explanation is that since she was in a

disturbed state of mind, she has not mentioned the details of the ill-

treatment. She, however, admits that her husband committed suicide

due to financial problem and that accused 2 is a retired teacher owning

15 Acres of land. She states that the deceased and accused

Chandrashekhar started residing separately. She denies the suggestion

that they were residing separately from accused 2 and accused 3 since

three months prior to the death of the deceased. The statement that

the deceased narrated ill-treatment when she came to the house of

P.W.1 on the occasion of Rakshabandhan is proved to be an omission.

14. P.W.2 Santosh is the brother of the deceased. P.W.2 has

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stated that P.W.1 received compensation of Rs.1,00,000/- from the

Government as the father of P.W.2 (husband of P.W.1) committed

suicide due to indebtedness. P.W.2 states that accused 1

Chandrashekhar knew that P.W.1 received Rs.1,00,000/- from the

Government. P.W.2 further states that accused 1 Chandrashekhar was

asking Aruna/the deceased to bring amount from her parents to enable

the accused Chandrashekhar to secure employment and that the

accused Chandrashekhar used to beat and ill-treat Aruna. P.W.2

deposes that accused 4 to 7 used to ill-treat Aruna when he had to visit

the house of accused 1. P.W.2 further deposes that accused 3 Anusaya

used to mix water or salt in the cooked food and as a consequence

accused 1 Chandrashekhar used to beat Aruna at the instigation of

accused 3. P.W.3 Shobha is the wife of the maternal uncle of the

deceased. She deposes that the deceased used to come to her house

occasionally. The deceased visited her in Diwali and told her that she

was ill-treated by accused 2 and accused 3 (father-in-law and mother-

in-law of the deceased). P.W.3 further deposes that accused 1

Chandrashekhar was demanding amount from the parents of the

deceased to secure employment and used to beat the deceased. She

states that on the occasion of Ganesh Festival Aruna came to her house

and showed marks of beating on her back. She deposes that at the

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instance of accused 2 and 3, accused 4 to 7 ill-treated Aruna whenever

accused 4 to 7 used to come to the house of their parents. The

statement of P.W.3 that the deceased showed her contusion on back is

an omission. P.W.5 Sudam Khadse is panch to the inquest

panchanama. However, in the cross-examination, he has supported

the accused by admitting that the accused and the deceased were

residing happily and there was no ill feelings (quarrels) between them.

P.W.5 further states in the cross-examination that accused 1 was

residing separately from his parents since 3 to 4 months prior to the

death of the deceased. The suicide note is proved to be in the

handwriting of the deceased by witness P.W.10 Vishwas

Ranjangaonkar.

15. The prosecution case hinges on the evidence of P.W.1

(mother), P.W.2 (brother), P.W.3 Shobha (wife of the maternal uncle

of the deceased) and the handwriting expert P.W.10 who has proved

the suicide note. In so far as accused 4 to 7 are concerned, they are

married sisters of accused 1 Chandrashekhar who are residing

separately with their respective husbands. I have no hesitation in

holding that accused 4 to 7 have been roped in and falsely implicated

with the motive of harassing and humiliating the family of the husband

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Chandrashekhar. Except a vague statement that as and when accused

4 to 7 visited the house of their brother-accused 1, they used to tease

or ill-treat the deceased, there is absolutely no evidence on record to

bring home the charge under Section 498-A of the Indian Penal Code

against accused 4 to 7.

16. The evidence against accused 1/husband and accused 2

and 3 (father-in-law and mother-in-law) is also bereft of any details

and is not at all confidence inspiring. The suicide note, as a fact,

absolves accused 1/husband in the sense that the deceased states that

she is committing suicide due to the harassment meted out by her in-

laws. The bald statement in the evidence of P.W.1, P.W.2 and P.W.3

that the accused demanded money to secure employment is not

trustworthy and cannot be the basis to hold that the deceased was

treated cruelly to coerce her or her family to fulfill unlawful demand.

17. Concededly, the demand is not made directly to any of the

witnesses. The mother of the deceased P.W.1 states that the deceased

narrated to her that the accused was demanding money to secure

employment, however, no particulars are forthcoming, the exact

amount, the nature of employment which the accused was to secure by

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making payment of money, are conspicuously absent in the evidence.

The version of P.W.2 the brother of the deceased is totally consistent

with that of his mother P.W.1. While P.W.1 does not make any

reference of she having receipt of amount of Rs.1,00,000/- as

compensation from the Government for the debt induced suicide of her

husband, P.W.2 has deposed that P.W.1 received Rs.1,00,000/- as

compensation which the accused/husband was aware of. P.W.2 has

attempted to link the alleged demand of the accused to the alleged

knowledge of accused 1 that P.W.1 has received the compensation of

Rs.1,00,000/-. I am afraid, a holistic consideration of the evidence of

P.W.1, P.W.2 and P.W.3 persuades me to hold that the prosecution has

not proved, that the deceased was ill-treated muchless ill-treated to

coerce her or her family members to fulfill an unlawful demand. The

allegation that accused 3 (mother-in-law) used to add excess water,

salt or chilly in the food cooked by the deceased and accused 1

Chandrashekhar used to beat the deceased, as a result of the complaint

of the maternal-in-law about the lack of culinary skills of the deceased,

is, in the factual matrix, not credible. That apart, the alleged conduct

or ill-treatment is not of the nature or degree as to be considered as

cruelty within the meaning of Explanation (a) and (b) of Section 498-A

of the Indian Penal Code. I am, of the opinion, that the prosecution

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has not established that the accused treated the deceased with cruelty

within the meaning of either Explanation (a) or (b) of Section 498-A of

the Indian Penal Code.

18. The judgment and order dated 25-7-2000 delivered by the

learned IInd Additional Sessions Judge, Yavatmal in Sessions Trial

92/1999 is unsustainable in law and is set aside. The appeal is

allowed. Accused 1 to 7 are acquitted of the offence punishable under

Section 498-A read with Section 34 of the Indian Penal Code. The bail

bonds shall stand discharged. Fine, if any, paid by the accused be

refunded to them.

The appeal is disposed of accordingly.

JUDGE

adgokar