Sushila Mohanlal Verma vs The State Of Mah.Thr.Pso ...
2017 Latest Caselaw 7920 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 42 OF 2006


 Sushilabai w/o. Mohanlal Verma,
 aged 42 Years,
 Occupation Household,
 resident of Ashtabhuja Ward, 
 By-pass road, Chandrapur                                       ....       APPELLANT


                     VERSUS

 The State of Maharashtra,
 through its Police Station Officer,
 Ramnagar, Chandrapur.                                          ....       RESPONDENT


 ______________________________________________________________
   Miss. A.M. Kshirsagar h/f Mr. Anil S. Mardikar, Senior Advocate for
                               appellant.
        Mr. N.B. Jawade, Addl. Public Prosecutor for respondent.
 ______________________________________________________________

                                           CORAM  :    ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT :06 OCTOBER, 2017 th

DATE OF PRONOUNCING THE JUDGMENT :09 OCTOBER, 2017 th

ORAL JUDGMENT :

The appellant faced trial alongwith Mohanlal Verma,

Buddhavilas Verma and Asha Mohanlal Verma (the husband, son and

daughter of the appellant) for offence punishable under section 304-B

and 498-A of Indian Penal Code ("IPC" for short). By judgment and

order dated 21.1.2006 in Sessions Case 4 of 2003 the learned 5 th Adhoc

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Additional Sessions Judge was pleased to convict the appellant

(hereinafter referred to as "the accused" ) of offences punishable under

section 306 and 498-A of IPC and to award the sentence of rigorous

imprisonment for 5 years and payment of fine of Rs. 2,000/-. The

other accused were acquitted.

2 The accused, who is challenging the conviction, is the

mother in law of the deceased Laxmi who concededly committed

suicide on 21.8.2002 by setting herself afire.

3 The marriage of Buddhavilas, the son of the accused, and

the deceased Laxmi was solemnized on 10.2.1999. The case of the

prosecution as unfolded during the trial is that on the occasion of the

marriage, Buddhavilas was gifted cash of Rs. 50,000/-, one she buffalo,

one television, bedding and other utensils. Laxmi stayed in the

matrimonial home for about 4 to 5 days and then returned to her

parental home. Laxmi conveyed to her parents that the accused Sushila

illtreated her for having given insufficient dowry. Be it noted, that the

accused is the sister of PW 5 Butta Ramesh Verma and the paternal

aunt of the deceased.

The accused came to escort Laxmi to the matrimonial home. PW

5 Butta Verma counseled the accused. The accused did not accept

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water in the house of PW 5 and declared that she would not accept

water unless her demand is fulfilled. Laxmi accompanied the accused

to the matrimonial home. Laxmi returned to her parental home on the

occasion of Rakshabandhan. Laxmi conveyed to the family members

that her in-laws illtreated her for dowry, used to beat and confine her

in a room. She used to be serve stale food and was prevented from

conversing with neighbours.

The prosecution case is that her husband Buddhavilas was made

aware of the suffering and the response was that till such time the

dowry is not paid, the accused Sushila would continue to illtreat Laxmi.

The accused escorted Laxmi to her parental house in summer

and warned PW 5 that Laxmi will not be allowed entry in the

matrimonial home till PW 5 fulfils the demand of dowry of Rs.

50,000/-. PW 5 tried to make the accused and other members of the

family to see reason but in vain. A Panchayat was therefore convened

on 2.10.2001 in the house of the accused. Discussions touching dowry

took place, PW 5 assured that he would pay some amount as dowry

and only thereafter the accused including Sushila showed willingness

to allow Laxmi to return to her matrimonial home. The accused did

come to the parental house of Laxmi and took her home immediately

but then the harassment did not cease. PW 6 Deepak who is the

brother of Laxmi went to the matrimonial house of Laxmi to escort her

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to the parental home on the occasion of Rakshabandhan. However, he

was told that Laxmi was admitted in hospital due to burn injuries. PW

5 rushed to the hospital alongwith other family members, Laxmi talked

with Durgaprasad (PW 4) the elder brother and conveyed that since

the accused were illtreating her mentally and physically for dowry, she

was compelled to take the extreme step.

4 One PSI Kakde of Ramnagar Police Station, Chandrapur

received telephonic information form Head Constable Pandurang that

Laxmi was admitted in Ward 6 with burn injuries. The said constable

recorded the statement of Laxmi (Exh.76). Laxmi expired at 18.10

p.m. or thereabout and Head Constable Pandurang submitted the dying

declaration (Exh.76) and intimation of death (Exh. 75) to the

Ramnagar Police Station. On the basis of the said report of the Head

Constable and the report of PW 5, First Information Report Exh. 50 was

registered for offences punishable under section 498-A, 304-B read

with section 34 of IPC.

5 Investigations ensued, PSI Kakde prepared spot

panchanama Exh. 36 in presence of panchas and seized certain articles

vide seizure panchanama Exh. 37. The statements of witnesses were

recorded and the accused was arrested.

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Completion of investigation culminated in chargesheet being

submitted in the Court of Chief Judicial Magistrate, Chandrapur who

committed the case to the Sessions Court. The learned Sessions Judge

framed charge, the accused abjured guilt and claimed to be tried. The

defence, as is discernible from the trend of the cross examination and

the statement under section 313 of Criminal Procedure Code is of total

denial and false implication.

6 Heard Miss. A.A. Kshirsagar, the learned counsel for the

accused and Mr. N.B. Jawade, the learned Additional Public Prosecutor

for the State.

7 Miss. Kshirsagar, the learned counsel for the accused

would submit that the judgment of conviction is manifestly erroneous

and against the weight of evidence on record. She would submit that

the learned Sessions judge having acquitted Mohanlal, Buddhavilas,

Aasha, father in law, the husband and sister in law of the deceased

respectively of offence punishable under section 498-A and 306 of IPC,

the learned Sessions Judge was not justified in convicting the accused

for the offence in the absence of additional or different evidence

against the accused Sushila. The conviction of the accused for offence

punishable under section 306 and 498-A of IPC is unsustainable. The

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evidence on record is grossly insufficient to establish the offence

against the accused in as much as there is no allegation much less proof

of any specific overt act or role of the accused, is the submission.

Miss. Kshirsagar would submit that even if the evidence of the

prosecution is accepted in entirety, the prosecution has not established

the offence punishable under section 306 or 498-A of IPC. She submits

that the evidence is grossly inadequate to conclude that the deceased

Laxmi was treated with cruelty within the meaning of explanation (a)

or (b) to section 498-A of IPC. She would submit that cruelty for the

purpose of section 498-A of IPC is statutorily defined and a conduct

which may be unreasonable, unacceptable or even foul and which may

constitute a matrimonial offence or misconduct, may not necessarily

constitute cruelty within the meaning of explanation (a) or (b) to

section 498-A of IPC. The learned counsel would submits that there is

not even an iota of evidence on record to establish a willful conduct

which is of such a nature as is likely to drive Laxmi to commit suicide

or to cause grave injury or danger to life, limb or health, whether

mental or physical, of the deceased Laxmi nor is there evidence to

suggest that Laxmi was harassed or illtreated with a view to coerce her

or her family to meet any unlawful demand for any property or

valuable security.

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 8                 Mr. N.B. Jawade, the learned APP fairly does not dispute

that the evidence which the learned Sessions Judge was pleased to

discard or ignore as unreliable or untrustworthy while acquitting the

co-accused cannot be used against the accused Sushila. He would

however, spell out the following circumstances to distinguish the role

and culpability of the accused from that of acquitted three co-accused.

(i) In her dying declaration Exh. 76, the deceased Laxmi has

clearly stated that she was fed up with the harassment meted out by

the accused Sushila;

(ii) PW 7 Chunkuprasad Piplange has deposed that the

accused Sushila was not inclined towards a positive and amicable

resolution of the domestic issues ;

(iii) PW 4 Durgaprasad Verma has deposed that it was the

accused Sushila who brought Laxmi alongwith her to the parental

home of Laxmi and left her there.

(iv) PW 4 Durgaprasad Verma has deposed that during his

conversation with Laxmi in the hospital, Laxmi disclosed that she set

herself on fire due to illtreatment from the accused Sushila.

(v) PW 6 Deepak Verma has deposed that he had a talk with

Laxmi in the hospital and was told that the accused Sushila illtreated

Laxmi.

In my considered opinion, the dying declaration Exh. 76 is hardly

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confidence inspiring. The dying declaration is recorded by Head

Constable Pandurang (PW 10) in the hospital. Concededly, Laxmi was

writhing with pain with 98% burns. The failure of PW 10 Pandurang

to even make an attempt to have Laxmi medically examined to

ascertain her fitness to give statement, is inexplicable. Absence of a

medical examination and certificate of fitness may not necessarily

impeach the credibility of the dying declaration. However, since

concededly the mental and physical fitness of Laxmi could have been

easily ascertained, the failure to have Laxmi medically examined

renders the dying declaration Exh. 76 doubtful. Be it noted, that there

is no explanation forthcoming as to why no attempt was made to have

Laxmi medically examined nor does Pandurang PW 10 assert that he

was satisfied that Laxmi was in the mental and physical state to give

statement. In the teeth of the evidence on record, the alleged

disclosure made by Laxmi to PW 4 Durgaprasad and PW 6 Deepak are

also suspect.

9 Even if the statement in the dying declaration Exh. 76 and

the disclosures allegedly made to PW 4 and PW 6 are, arguendo,

accepted at face value, the case of the prosecution is not taken any

further. Omnibus statement that the accused subjected the deceased to

harassment, is not sufficient to hold that Laxmi was subjected to cruelty

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within the meaning of explanation (a) or (b) to section 498-A of IPC.

None of the prosecution witnesses have come out with the details of

the alleged harassment or illtreatment to which Laxmi was allegedly

subjected by accused Sushila. The statement in the dying declaration

that Laxmi was fed up with life due to the harassment meted out by the

accused Sushila is again too general and vague a statement to lead to

an inference that the accused Sushila subjected Laxmi to cruelty of such

nature and extent as would bring explanation (a) or (b) to section

498-A into play.

10 None of the other circumstances relied upon by the learned

APP Shri. N.B. Jawade is of any assistance to the prosecution. The

evidence of PW 4 and PW 6 is again too vague and sketchy and no

particulars of any specific incident or overt act is spelt out. The

insinuation in the evidence of PW 7 that the accused Sushila appeared

to be disinclined to mutually resolve the domestic issues is only an

inference drawn by the witness from the fact that the accused took her

husband aside and then took charge of the proceeding.

11 Miss. Kshirsagar, the learned counsel for the accused relies

on a relatively recent judgment of the Hon'ble Apex Court in

Gurcharan Singh Vs. State of Punjab (2017) 1 SCC 433 and in

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particular to the following observations:-

"19. A plain refusal of the above quote also reveals that apart from an omnibus grievance against her in laws to be responsible for their death, for which according to her, they ought to be punished, there is no reference or disclosure of any specific incident in support thereof. The suicide note divulges her ownership of lands and house which per se belies the charge that she had been denied the share of her husband in the family property. Noticeably, no attempt was made by the prosecution to prove the author of the text through an expert and both the courts below solely based their conclusion, in this regard on the evidence of Pws 5 and 6, the brothers of Surjit, who identified the contents to be that of her again on eye estimation."

"20. Section 306 of the Code prescribes the punishment for abetment of suicide and is designated thus:

"306, Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

"21. It is thus manifest that the offence punishable is one ofabetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the properlling causative factor. The basis ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity,

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culpability and complicity of the indictable acts or omission are the concomitant indicces of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."

"24. In the legislative backdrop outlined hereinabove, Section 498-A of the Code also demands extraction:

"498-A. Husband or relative of husband of a women subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a women, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

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 security or is on account of failure by her or any person related to her to meet such demand."

"25. This provision, as the quote hereinabove reveals, renders the husband of a women or the relative of his, punishable thereby with imprisonment for a term which may extend to three years and also fine, if they or any one of them subject her to cruelty. The Explanation thereto defining "cruelty" enfolds":

(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

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(b) harassment of the woman, where it 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.

"26. Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the wilful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the person charged."

"29. That the intention of the legislature is that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit an offence and that there ought to be an active or direct act leading the deceased to commit suicide, being left with no option, had been pronounced by this Court in S.S.Chheena v. Vijay Kumar Mahajan.

The learned counsel would further rely on the Division Bench

judgment of this Court in Dilip & Ors..vs..State of Maharashtra & Anr

(Criminal Application [Apl] No. 332 of 2016, and the judgments of the

Hon'ble Supreme Court in Ramesh Kumar ..vs.. State of

Chhattisgarh(2001) 9 SCC 618, Rajbabu & Anr..vs..State of Madhya

Pradesh(2008) 17 SCC 526 and Sanju alias Sanjay Singh

Sengar..vs.. State of Madhya Pradesh-AIR2002 SC 1998 to buttress

her submission that if the evidence is tested on the anvil of the settled

position of law, the prosecution must fail.

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 12                For the reasons articulated supra, I am not persuaded to

hold that the offence under section 498-A of IPC is established against

the accused Sushila. Axiomatically, the charge under section 306 of

IPC necessarily fails.

a)The judgment impugned is unsustainable in law and is set

aside.

b)The accused is acquitted of offence punishable under section

498-A of IPC.

c)Bail bond of the accused stand discharged.

d)Fine paid by the accused, if any, be refunded to him.

e)The appeal is allowed.

JUDGE

Belkhede