Vijay Nagoji Pradhan vs The State Of Maharashtra
2017 Latest Caselaw 5135 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       CRIMINAL APPEAL NO. 406 OF 2001

Vijay s/o Nagoji Pradhan,
Age : 21 years, Occu.: Laborer,
R/o.: Shivshankar Colony,
Aurangabad                                                 APPELLANT

       VERSUS

The State of Maharashtra                                   RESPONDENT


                          ----
Ms.Varsha Ghanekar, Advocate holding for Mr.N.S. 
Ghanekar, Advocate for Appellant
Smt.R.P. Gaur, A.P.P. for respondent/State
                          ----

                                    CORAM :   SANGITRAO S. PATIL, J.

                           Reserved on  :     13th JULY, 2017
                           Pronounced on:     27th JULY, 2017


JUDGMENT : 

Heard the learned counsel for the appellant and

the learned A.P.P.

2. The appellant (original accused No.2) has been

convicted by the learned II Additional Sessions Judge,

Aurangabad on 29th September, 2001 in Sessions Case No.

118 of 1998 for the offences punishable under Sections

498-A, 304-B and 306 of the Indian Penal Code ("IPC",

for short). He has been sentenced to suffer rigorous

2 criapl406-2001

imprisonment for one year and to pay a fine of Rs. 200/-

in respect of the offence under Section 498-A and

rigorous imprisonment for seven years and a fine of Rs.

1000/- in respect of the offence under Section 304-B. No

separate sentence has been awarded for the offence

punishable under Section 306 of the IPC. The

substantive sentences have been ordered to run

concurrently. The said convictions and sentences have

been challenged in this appeal.

3. Undisputedly, the deceased Ramabai and the

appellant got married on 9th January, 1994. The

deceased Ramabai begot two sons from this wedlock. The

elder was aged about three years, while the younger was

just of five days when Ramabai died.

4. It is the case of the prosecution that the

appellant, his brother Raju and father Nagoji used to

illtreat the deceased Ramabai with a view to compel her

to bring Rs. 10,000/- from her maternal home for

purchasing a Luna. They used to drive her out of their

house. The informant namely Dhanaji Kishan Thorat,

resident of Ramanagar, Aurangabad, who is the father of

the deceased Ramabai, used to convince the appellant and

the above mentioned inlaws of the deceased Ramabai for

3 criapl406-2001

treating her properly. Ramabai delivered her younger

son in the Government Hospital and Training Institute

("GHATI", for short) at Aurangabad on 14th August, 1997.

The informant took her to his house on 17th August,

1997. On that day, at about 1.30 p.m., the appellant

went to the house of the informant under the influence

of liquor and asked the deceased Ramabai to accompany

him and reside at his house. The deceased Ramabai told

him that she had delivered a child just before four days

and requested him to allow her to reside at her maternal

home for some more days. Thereon, the appellant got

angry and started altercating with the informant as well

as the deceased Ramabai. He threatened that in case the

deceased Ramabai would not accompany him for going to

his house, he would kill the newly born child. He was

not in a position to listen to anybody. Considering the

threat extended by the appellant, the deceased Ramabai

decided to go with him. The appellant had threatened

that he would see her after reaching his house. On the

same day, the informant received a message that Ramabai

had sustained burns and she was admitted in GHATI. He

went to the GHATI and asked the deceased Ramabai as to

what had happened to her, whereon she informed him that

she was afraid of being beaten by the appellant and

4 criapl406-2001

therefore, she herself poured kerosene on her person and

set herself ablaze. Ramabai died of the burn injuries

on 19th August, 1997 at 4.25 a.m.

5. When the deceased Ramabai was admitted in

GHATI, her dying declaration was recorded by the Special

Executive Magistrate on 17th August, 1997 at 9.00 p.m.

and thereafter, on the same day, another dying

declaration was recorded by PSI Inamdar. In both of

these dying declarations, she stated that she was

brought by the appellant to his house after having

altercations with her and that she was very much afraid

of being beaten by him and therefore, she poured

kerosene on her person and set herself ablaze.

6. After the death of Ramabai, the informant

lodged report in Police Station, Jawaharnagar,

Aurangabad, on the basis of which Crime No. I-194/1997

came to be registered against the appellant, his brother

and father for the offences punishable under Sections

498-A, 304-B, 504, 506, 323 read with Section 34 of the

IPC. The investigation followed. The inquest on the

body of the deceased Ramabai was prepared. The post-

mortem   was   conducted.     The   Autopsy   Surgeon   found   that 

the   deceased   Ramabai   had   sustained   93%   of   burns.     He 



                                      5                          criapl406-2001

opined that she died of shock due to burns. The Spot

Panchanama was prepared, the statements of witnesses

were recorded. After completion of the investigation,

the appellant, his brother and father came to be

chargesheeted for the above mentioned offences.

7. The father of the appellant died prior to

framing of the charges by the learned Trial Judge.

Hence, the case abated against him. The case proceeded

against the appellant and his brother. The learned

Trial Judge framed charges against them vide Exh-3 for

the offences punishable under Sections 498-A, 304-B and

306 of the IPC and explained the contents thereof to

them in vernacular. They pleaded not guilty and claimed

to be tried. Their defence is that of total denial.

8. The prosecution examined in all seven witnesses

to establish guilt of the appellant and his brother for

the above mentioned offences. After evaluating the

evidence on record, the learned Trial Judge found

sufficient evidence to bring home guilt to the appellant

for the said offences. He, therefore, convicted and

sentenced the appellant as stated above. The learned

Trial Judge did not find any evidence to connect the

brother of the appellant with the above mentioned

6 criapl406-2001

offences. Hence, the brother of the appellant came to

be acquitted of the said offences.

9. The learned counsel for the appellant submits

that the evidence produced on record is not sufficient

to establish guilt of the appellant for the offences for

which he is convicted. She submits that there is

absolutely no evidence to show that the appellant had

demanded money from the maternal home of the deceased

Ramabai. It is not even in her dying declarations or in

the evidence of the informant that on the day of the

incident, the appellant had made any demand of money.

Therefore, the alleged incident cannot be connected with

the demand of money/dowry. She further submits that

after the incident, the appellant tried to extinguish

fire in which he also sustained burns. He took the

deceased to GHATI for treatment. These facts clearly

show that he had no intention to drive the deceased

Ramabai to commit suicide. According to her, the

appellant neither instigated, intentionally aided or

facilitated the deceased Ramabai to commit suicide. She

submits that no cruelty as explained under Section 498-A

of the IPC has been established on the part of the

appellant. According to her, the mother of the deceased

7 criapl406-2001

Ramabai was not at her maternal home. Therefore, the

appellant asked her to come to his house. Since the

deceased Ramabai was taken by the appellant to his house

against her wish, she committed suicide. The learned

counsel submits that the appellant has been wrongly

convicted by the Trial Court.

10. As against this, the learned A.P.P. submits

that previously also, the informant as well as the

deceased Ramabai had lodged reports against the

appellant on the allegations of illtreatment. The

appellant is a drunkard. He used to beat the deceased

Ramabai under the influence of liquor. On the day of

the incident, the appellant had consumed liquor. He

quarrelled with the informant and the deceased Ramabai

and took her to his house though she had delivered a

child hardly before about four days. Considering the

previous conduct of the appellant, the deceased Ramabai

was very much wandering under a great fear that she

would be severely beaten by the appellant. Therefore,

she was left with no alternative but to finish her life

by committing suicide. She submits that the informant

has specifically stated that the deceased Ramabai was

illtreated by the appellant with a view to compel her

8 criapl406-2001

to bring Rs. 10,000/- from her maternal home for

purchasing a Luna. According to her, the learned Trial

Judge has rightly appreciated the evidence and rightly

held the appellant guilty of the above mentioned

offences. She submits that the impugned judgment and

order call for no interference.

11. The informant specifically states that on the

day of the incident, when the deceased Ramabai was at

his house after undergoing delivery prior to about four

days in GHATI at Aurangabad, the appellant came there

after consuming liquor and insisted upon the deceased

Ramabai to accompany him for going to his house. When

he asked the appellant to allow the deceased Ramabai to

reside at his house at least for five days after

delivery, the appellant threatened the deceased Ramabai

that he would kill her newly born child if she did not

accompany him. He further states that while leaving the

house, the appellant threatened the deceased Ramabai

that he would see her after reaching his house. It was

the time of about 4.45 p.m. to 5 p.m. when the appellant

took the deceased Ramabai with him from the house of the

informant. He states that on the same day, at about

6.00 p.m. to 6.45 p.m., he received a message that

9 criapl406-2001

Ramabai had sustained burns and she was admitted in

GHATI. He went to GHATI and enquired with the deceased

Ramabai about the incident, whereon she told him that

the appellant beat her on the way while going to his

house and due to fear of more beating, she poured

kerosene on her person and set herself on fire. He

states that the deceased Ramabai had told him that she

was fed up of the illtreatment meted out to her by the

appellant.

12. In paragraph No. 10 of the cross-examination of

the informant, he states that he had stated to the

police while lodging the report (Exh-16) that when the

appellant had taken the deceased Ramabai to his house,

he had threatened her to see after reaching his house.

He further stats that he had stated before the police

that when the deceased Ramabai was in the house, she had

disclosed that she was beaten by the appellant on the

way while going to his house and that she was fed up

with the illtreatment that was meted out to her. He

states that he cannot assign any reason for non-mention

of these facts in the report (Exh-16). Though these

facts do not find place in the report (Exh-16), the fact

that these facts were stated by this witness before the

10 criapl406-2001

police has not been denied. Even it was not asked to

PHC Chavan (PW5), who recorded the report (Exh-16),

whether the informant had stated the said facts before

him. Thus, these omissions have not been proved.

Therefore, the appellant cannot get any benefit of these

omissions. On the contrary, from the evidence of the

informant, it can be said that though he stated these

material facts before the police, they were not recorded

by the police. This evidence of the informant clearly

shows as to how the appellant illtreated the deceased

Ramabai while taking her to his house from the house of

the informant and what was the mental stress suffered by

the deceased Ramabai because of the said illtratment.

13. The evidence of the informant about the

behaviour and conduct of the appellant when he visited

the house of the appellant on the day of the incident is

corroborated by Govind (PW2) (Exh-9), who is the

neighbour of the informant. He also states that on that

day, the appellant came to the house of the informant,

picked up quarrels with the deceased Ramabai and took

her with him. He further states that the appellant was

addicted to drinks. He then states that the appellant

had beaten the deceased Ramabai after consuming liquor

11 criapl406-2001

many times in his presence and had taken her away with

him to his house. It has come in his cross-examination

that prior to the date of the incident, the appellant

had quarrlled with the deceased Ramabai and taken her to

his house on 1st May, 1997. This positive statement

that has been brought in the cross-examination of this

witness also makes it clear as to how the appellant was

illtreating the deceased Ramabai.

14. It has come in the cross-examination of Govind

(PW2) that he had not given statement to the police and

that he disclosed about the above mentioned incidents

for the first time in the Court. It seems that this

witness was not made clear about the act of giving

statement to the police. As a matter of fact, his

statement recorded by PSI Rathod (PW6) is on record. PSI

Rathod (PW6) specifically states that he recorded

statements of the neighbours of the informant. There is

no dispute that this witness is the neighbour of the

informant. It is likely that since the statement before

the police is not required to be signed by the witness,

this witness must have denied of having given any

statement before the police. In the circumstances, his

evidence cannot be discarded on that count. He

12 criapl406-2001

corroborates the evidence of the informant on the point

of the cruel conduct and behaviour of the appellant with

the deceased Ramabai.

15. Gulab Khan (PW4) (Exh-17) states that after

getting it verified from the Medical Officer about the

conscious state of mind as well as fitness to give

statement of the deceased Ramabai, he recorded her dying

declaration on 17th August, 1997 at 9.00 p.m. in GHATI.

The said dying declaration is at Exh-18. In that dying

declaration, the appellant has specifically stated that

on that day, the appellant quarrelled with her for

compelling her to go with him to his house and forcibly

took her with him. She states that the appellant had

consumed liquor on that day. She further states that the

appellant some times used to consume liquor and beat

her. She was very much afraid that the appellant would

beat her on that day. Therefore, under the fear of

being beaten by the appellant she poured kerosene on her

person and set herself ablaze.

16. PSI Inamdar (PW7) (Exh-28) also states that he

recorded the dying declaration (Exh-29) of the deceased

Ramabai on 17th August, 1997 after Gulab Khan (PW4)

13 criapl406-2001

recorded her dying declaration. He states that he had

given a letter to the Medical Officer seeking his

opinion as to whether the deceased Ramabai was in a fit

condition to give statement. The Medical Officer

permitted him to record the statement of Ramabai.

Thereafter, he recorded her statement. In that

statement also, the deceased Ramabai stated almost all

the facts which were stated by her in her dying

declaration (Exh-18). She further added that the

appellant was habituated to drinks and she poured

kerocene on her person and set herself ablaze under the

fear of being beaten by the appellant.

17. The evidence of Gulab Khan (PW4) and PSI

Inamdar (PW7) that they got it verified from the Medical

Officer that the deceased Ramabai was in a fit state of

mind to give statement and thereafter, they recorded her

statements, has not been denied/challenged in their

cross-examinations taken on behalf of the appellant.

This unchallenged evidence, therefore, will have to be

accepted and accordingly accepted. Both these dying

declarations, disclosing the circumstances under which

the deceased Ramabai set herself ablaze, are consistent.

Though there is mention in these dying declarations that

14 criapl406-2001

she had no illtreatment from the side of the appellant,

it seems that the deceased Ramabai wanted to save the

appellant keeping in view the future of her two sons who

were going to be placed at the mercy of the appellant

after her demise. But even after saying that she had no

illtreatment from the appellant, she again reiterated

that she set herself ablaze due to the fear of being

beaten by the appellant. Consequently, the part of the

statement, which tends to exonerate the appellant, would

not have any adverse effect on the case of the

prosecution that because of the illtreatment at the

hands of the appellant, the deceased Ramabai had got fed

up and on the day of the incident, due to fear of being

beaten by the appellant, she set herself ablaze.

18. As per Explanation (a) under Section 498-A of

the IPC, "cruelty" means 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.

Thus, even mental torture or abnormal behaviour of the

husband may amount to cruelty and harassment as

contemplated under Section 498-A of the IPC. In the

present case, the deceased Ramabai had one son aged

15 criapl406-2001

about three years. She had delivered another son just

prior to four days of the incident. One can imagine the

pressure created by the appellant on the mind of the

deceased Ramabai by his conduct and harassment meted out

to her after consuming liquor, that she took an extreme

decision to forget her tie of love and affection to her

lovely kids and embrace death to avoid the torture at

the hands of the appellant. She specifically states

that the appellant was in the habit of consuming liquor

and that he was torturing her under the influence of

liquor. On the day of the incident, the appellant

quarrelled with her for compelling her to accompany him

for going to his house though she had delivered a child

just before four days. Had there been good intention on

the part of the appellant in taking her away from her

maternal home, she happily would have gone with him.

She wanted to reside at her maternal home even though

her mother was not there. That shows that even in the

absence of her mother, she would have been more

comfortable at her maternal home. Therefore, the

contention of the learned counsel for the appellant that

because the mother of the deceased Ramabai was not

present at her maternal home for taking her care, the

appellant wanted to take her to his house, cannot be

16 criapl406-2001

said to have any substance. Had the appellant been so

caring husband of the deceased Ramabai, she wold not

have thought of staying even for a minute at her

maternal home and would not have decided to finish her

life after going to the house of the appellant.

19. It has come in the evidence of the informant

that he had lodged a report to Police Station,

Jawaharnagar on 7th August, 1995 against the appellant.

The copy of non-cognizable case registered on the basis

of that report is at Exh-22, wherein it is mentioned

that on 7th August, 1995, at 8.00 p.m., the appellant

hurled abuses against the informant because the deceased

Ramabai had been to his house. PSI Rathod (PW6) has

produced the extract from Station Diary in respect of

non-cognizable case No. 562 of 1995 registered against

the appellant on the basis of the report lodged by the

deceased Ramabai wherein it is stated that the

appellant, on 13th October, 1995 at about 8.00 a.m.,

hurled abuses and beat the deceased Ramabai by fist and

kicks at her maternal home. These reports reflect on the

conduct and torturous behaviour of the appellant. These

previous reports support the case of the prosecution

that the appellant was illtreating the deceased Ramabai.

17 criapl406-2001

20. From the facts and circumstances of the case,

it is clear that the appellant had created fear

psychosis in the mind of the deceased Ramabai by his

torturous conduct. She was under a great mental

pressure. Because of the mental pressure created by the

appellant by such torturous behaviour, the deceased

Ramabai was left with no other option except to commit

suicide. As such, the prosecution established beyond

doubt that the appellant subjected the deceased Ramabai

to cruelty which drove her to commit suicide.

21. There is one more factum which strengthens the

case of the prosecution about abetment on the part of

the appellant to the deceased Ramabai to commit suicide.

The marriage of the deceased Ramabai and the appellant

was performed on 9th January, 1994. She set herself

ablaze on 17th August, 1997 and succumbed to the burn

injuries on 19th August, 1997. Thus, she committed

suicide within a period of seven years from the date of

her marriage. Here, reference may be made to Section

113-A of the Indian Evidence Act, 1872, which reads as

under:-

18 criapl406-2001

"113-A. Presumption as to abetment of suicide by a married woman. -

When the question is whether th commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

22. The presumption contained in section 113-A is

fully applicable to the present case. The appellant has

not rebutted the said presumption by showing any other

reason for the deceased Ramabai to commit suicide than

the reason given by her in her dying declarations that

because of the fear of being beaten by the appellant,

she set herself ablaze. It is clear that the appellant

created such circumstances which compelled the deceased

Ramabai to commit suicide. Thus, the prosecution has

established guilt of the appellant for the offence

punishable under Section 306 of the IPC.

23. So far as offence punishable under section

304-B of the IPC is concerned, except a single sentenced

uncorroborated evidence of the informant that the

accused persons (i.e. the appellant, his father and

19 criapl406-2001

brother) had demanded money for purchasing a Luna,

nothing is on record to establish such demand for money/

dowry. Even the informant does not state that either on

the date of the incident i.e. 17th August, 1997 or prior

to that, the appellant had demanded money. There is

nothing in the dying declarations of the deceased

Ramabai also about the so called demand of money by the

appellant. In the circumstances, the finding of the

learned Trial Judge that there was demand of money and

the deceased Ramabai was being illtreated by the

appellant in connection with that demand, cannot be

upheld. The prosecution has failed to establish guilt

of the appellant for the offence punishable under

Section 304-B of the IPC.

24. Though it was necessary to pass a separate

sentence, the learned Trial Judge has not passed

separate sentence against the appellant for the offence

under Section 306 of the IPC since according to him, the

appellant has been sentenced to suffer rigorous

imprisonment for seven years and to pay a fine of

Rs. 10,000/-, in default to suffer rigorous imprisonment

for six months for the offence under Section 304-B of

the IPC. As stated above, the offence punishable under

20 criapl406-2001

Section 304-B of the IPC is not established against the

appellant. However, he is liable to be sentenced for

the offence under Section 306 of the IPC. In my view,

considering the facts and circumstances of the case and

particularly the fact that the period of about 20 years

has been elapsed after the date of the incident, it

would be just and proper to sentence the appellant for

the offence under Section 306 of the IPC with rigorous

imprisonment for five years and to pay a fine of Rs.

1000/-, in default to suffer rigorous imprisonment for

six months.

25. The learned Trial Judge has sentenced the

appellant for the offence under Section 498-A of the IPC

with rigorous imprisonment for one month. This sentence

does not call for interference.

26. The appellant is liable to be acquitted of the

offence punishable under Section 304-B of the IPC.

27. The appellant was in jail from 10th September,

1997 to 20th September, 1997. He was further taken into

custody on 29th September, 2001 (on the date of decision

of the Trial Court) and was released on bail by this

21 criapl406-2001

Court vide order dated 26th November, 2001. He is liable

to get set off in respect of the said period. In the

result, I pass the following order:-

O R D E R

(i) The appeal is partly allowed.

(ii) The impugned judgment convicting the appellant

for the offences punishable under Sections

498-A and 306 of the Indian Penal Code is

confirmed.

(iii) The order of sentence passed by the learned

Trial Judge against the appellant in respect of

the offence punishable under Section 498-A of

the Indian Penal code is confirmed.

(iv) The appellant is sentenced for committing the

offence under Section 306 of the Indian Penal

Code with rigorous imprisonment for five years

and to pay a fine of Rs. 1000/-, in default

rigorous imprisonment for six months.

(v) The impugned judgment and order, convicting the

appellant for the offence punishable under

Section 304-B of the Indian Penal Code, is

22 criapl406-2001

quashed and set aside.

(vi) The appellant is acquitted of the offence

punishable under Section 304-B of the Indian

Penal Code.

(vii) The substantive sentences of imprisonment shall

run concurrently.

(viii) The appellant shall be given set off for the

period from 10th September, 1997 to 20th

September, 1997 and from 29th September, 2001

till the date he was actually released on bail.

(ix) The appellant shall surrender to his bail bonds

by appearing before the Trial Court on or

before 3rd August, 2017 for suffering the

sentence of imprisonment.

(x) In case the appellant fails to surrender as

stated above, the Trial Court shall issue

coercive process to secure his presence.

(xi) The Criminal Appeal is disposed of accordingly.

Sd/-

[SANGITRAO S. PATIL] JUDGE npj/criapl406-2001