Bombay High Court

Tatyarao Vithalrao Surwase And ... vs State Of Maharashtra on 27 July, 2017

Bench: Sangitrao S. Patil

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 85 OF 2002

1.  Tatyarao s/o Vithalrao Surwase, 
    Age : 23 years, Occu.: Labourer

2.     Anjanabai w/o Vithalrao Surwase,                       (Abated)
       Age : 46 years, Occu.: Household,

       Both residing at Bharaswada,
       Tq. and Dist. Parbhani                                 .. APPELLANTS 
                                                              (Orig.Accused)
       VERSUS

       State of Maharashtra                                   .. RESPONDENT

                          ----
Mr. S.S. Rathi, Advocate for the appellants 
Mr. P.N. Kutti, A.P.P. for the respondent/State 
                          ----

                                        CORAM : SANGITRAO S. PATIL, J.

DATE : 27th JULY, 2017

ORAL JUDGMENT :

The appellants have challenged their conviction

and sentence for the offences punishable under Section

498-A read with 34 of the Indian Penal Code ("IPC", for

short), recorded by the learned 2nd Ad-hoc Additional

Sessions Judge, Parbhani in Sessions Trial No.10 of 2001

on 08.02.2002.

2. It was alleged that on 11.12.2000 and prior to

that the appellants, being the husband and mother-in-law

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respectively of the deceased - Renukabai, subjected

her to cruelty and abetted her to commit suicide by

jumping into a well on 11.12.2000.

3. The prosecution examined five witnesses to

establish guilt of the appellants for the above-

mentioned offences. After evaluating the evidence of

the witnesses, the learned Trial Judge held that the

prosecution failed to prove that the deceased -

Renukabai committed suicide. However, he held that the

prosecution established guilt of the appellants for

the offence of subjecting the deceased - Renukabai to

cruelty made punishable under Section 498-A of the

IPC. The learned Trial Judge, therefore, acquitted the

appellants of the offence punishable under Section 306

of the IPC, convicted them for the offence punishable

under Section 498-A of the IPC and sentenced each of

them to suffer rigorous imprisonment for one year and

to pay a fine of Rs.500/-, in default to suffer

rigorous imprisonment for one month.

4. The prosecution did not challenge the

judgment and order acquitting the appellants of the

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offence punishable under Section 306 of the IPC. The

said part of the judgment and order passed by the

learned trial Court has attained finality.

5. During the pendency of the appeal, appellant

No.2 expired, hence the appeal came to be abated

against her.

6. The learned counsel for the appellant No.1

submits that the prosecution has relied on the

evidence of Babu (PW1) (Exh.25), Indubai (PW2)

(Exh.27) and Aruna (PW3) (Exh.28), who are the father,

mother and sister respectively of the deceased -

Renukabai to establish that appellant No.1 subjected

the deceased Reunkabai to cruelty. He submits that all

these witnesses have stated about the alleged cruelty

meted out to the deceased - Reunkabai, on the basis of

what she had informed them whenever she had an

occasion to meet them. None of these witnesses is the

eye witness to the alleged illtreatment. He submits

that the learned Trial Judge held that the death of

the deceased - Renukabai was not suicidal. It is not

the case of the prosecution that her death was

homicidal. In the circumstances, relying on the

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judgment in the case of Bhairon Singh V. State of M.P.

AIR 2009 Supreme Court 2603, he submits that the

statements of the father, mother and sister of the

deceased - Renukabai would not be admissible in

evidence to prove that the deceased- Renukabai was

subjected to cruelty by appellant No.1. He submits

that the learned trial Judge wrongly relied on their

evidence and wrongly convicted the appellants.

7. The learned A.P.P. supported the impugned

judgment and order. He submits that the evidence about

the physical and mental torture of the deceased coming

from the near relatives of the deceased like mother,

brother etc. cannot be discarded simply on the score

of absence of corroboration by independent witnesses.

8. In the case of the Bhairon Singh (supra), the

following question arose for consideration of the

Hon'ble the Apex Court, which reads as under :-

"In a case where accused has been acquitted of the offence punishable under Sections 304-B and 306, IPC, and the death of wife is neither homicidal nor suicidal but

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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 the Apex Court answered this

question in para 11 of the judgment, thus:-

"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 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 Indian 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

6 criapl85-2002

cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction 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."

9. In the present case, the learned Trial Judge

acquitted the appellants of the offence punishable

under Section 306 of the IPC, holding that the death

of Renukabai was not suicidal. Admittedly, her death

is not homicidal. The learned Trial Judge observed, on

the basis of the medical evidence, that the

possibility of accidental death of Renukabai cannot be

ruled out. In the circumstances, the evidence of Babu

(PW1), Indubai (PW2) and Aruna (PW3) about the alleged

illtreatment meted out to her by the appellants, as

narrated to them by the deceased - Renukabai whenever

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she had an occasion to meet them, would not be

admissible under Section 32(1) of the Indian Evidence

Act to establish the guilt of the appellants for the

offence punishable under Section 498-A of the IPC in

view of the above cited judgment. There is nothing in

the evidence of these witnesses to show that they

actually saw any of the appellants illtreating the

deceased - Renukabai in any manner. If the evidence of

these three witnesses is discarded on the ground that

it is not admissible, there would be nothing to prove

the guilt of the appellants for the offence under

Section 498-A of the IPC.

10. The learned Trial Judge wrongly relied on the

evidence of Babu (PW1), Indubai (PW2) and Aruna (PW3),

which was not legally admissible and wrongly held the

appellants guilty of the offence punishable under

Section 498-A of the IPC. The impugned judgment and

order convicting and sentencing the appellants for the

said offence are not legal, proper and correct.

Consequently, the appeal will have to be allowed and

accordingly allowed. In the result, I pass the

following order:-

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                                     O R D E R


(i)              The appeal is allowed.


(ii)             The impugned judgment and order of conviction

and sentence passed against appellant No.1 are quashed

and set aside.

(iii) Appellant No.1 is acquitted of the offence

punishable under Section 498-A of the Indian Penal

Code.

(iv) The Appeal stood abated against appellant

No.2 - Anjanabai.

(v) The bail bonds of the appellant No.1 are

cancelled. He be set at liberty.

(vi) Fine amount, if deposited by appellant No.1,

be refunded to him.

Sd/-