Ananda S/O Namdeo Rathod And ... vs State Of Maharashtra
2017 Latest Caselaw 8230 Bom

                                       1                                       apeal352.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 352 OF 2002


 1) Ananda s/o Namdeo Rathod,
     Aged about 40 years, 
     Occupation - Agriculturist, 

 2) Yashodabai w/o Namdeo Rathod, - (Abated as per
     Aged about 50 years,            order dt. 17-4-2017)
     Occupation - Labourer. 

     Both resident of Lohatwadi, 
     Police Station Ner, District Yavatmal.                    ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Police Station Officer, 
 Police Station, Ner, District Yavatmal.                       ....       RESPONDENT

 ______________________________________________________________

            Shri S.D. Dharaskar, Advocate for the appellant, 
             Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 11-09-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 30-10-2017

 JUDGMENT : 

The challenge is to the judgment and order dated

27-6-2002 in Sessions Trial 174/1996 delivered by the learned

2 apeal352.02

Additional Sessions Judge, Yavatmal, by and under which appellant 1

Ananda and appellant 2 Yashodabai are convicted for offence

punishable under Section 498-A read with Section 34 of the Indian

Penal Code and are sentenced to suffer rigorous imprisonment for

three years and to payment of fine of Rs. 200/- and for offence

punishable under Section 306 read with Section 34 of the Indian Penal

Code and are sentenced to suffer rigorous imprisonment for five years

and to payment of fine of Rs.200/-.

2. Appellant 1 and appellant 2 faced trial for the said offence

alongwith one Ukanda (accused 3) and one Babarao (accused 4).

Accused 3 and 4 are, however, acquitted and appellant Yashodabai

(accused 2) expired during the pendency of the appeal, with the result,

that the appeal stands abated against her.

3. The case of the prosecution as unfolded during the course

of the trial is thus :

The deceased Kavita and appellant 1 Ananda (hereinafter

referred to as the "accused") entered into matrimonial alliance in the

year 1993. The couple was blessed with a girl child. Kavita concededly

committed suicide on 15-6-1996 at village Lohatwadi, Tahsil Ner,

3 apeal352.02

District Yavatmal.

In view of the receipt of information that Kavita, who was

rushed to Rural Hospital, Ner on 15-6-1996, was declared brought

dead on 1-00 p.m. on 15-6-1996, an enquiry under Section 174 of the

Criminal Procedure Code was registered by Head Constable Subhash of

Police Station Ner. However, in view of the report lodged by the father

of the deceased Kavita, Bhaurao Pawar alleging that Kavita was

subjected to cruelty and was driven to commit suicide, offence

punishable under Sections 498-A and 306 read with Section 34 of the

Indian Penal Code was registered against accused Ananda,

Yashodabai, Ukanda and Babarao on 15-6-1996.

The investigation was conducted by PSI Ashok Aiyyar who

prepared the spot panchanama, seized the plastic bottle containing

insecticide, sent the dead body for post-mortem examination, seized

the clothes of the deceased, arrested the accused, recorded the

statements of witnesses and upon a letter addressed by accused

Ananda to the father of deceased Bhaurao being produced by Bhaurao

on 21-6-1996, seized the said letter dated 11-6-1996. The completion

of investigation culminated in submission of charge-sheet in the Court

of Judicial Magistrate First Class, Ner who committed the case to the

Sessions Court. The learned Sessions Judge framed charge at Exhibit

4 apeal352.02

No.17, the accused abjured guilt and claimed to be tried. The defence

of the accused as is discernible from the trend of the cross-examination

and the statement recorded under Section 313 of the Criminal

Procedure Code is of total denial and false implication. The defence

also appears to be that the deceased Kavita was not keeping good

health which may have driven her to take the extreme step. The

prosecution has examined as many as five witnesses. P.W.1 Bhaurao

Pawar, P.W.2 Shanti Pawar and P.W.3 Ramesh Pawar, the father,

mother and uncle of the deceased Kavita are the material witnesses

who have been examined to prove that the deceased Kavita was

subjected to cruelty. P.W.4 Haridas Jadhao is the panch to the seizure

panchanama Exhibit 54 and P.W.5 Ashok Aiyyar is the Investigating

Officer.

4. In order to prove that the deceased Kavita was subjected to

cruelty by the accused, the prosecution heavily relies on the testimonies

of P.W.1 to P.W.3 and on a letter dated 11-6-1996 addressed by the

accused Ananda to P.W.1 Bhaurao, the contents of which according to

the prosecution prove that the accused Ananda subjected the deceased

to cruelty to coerce her and her family members to fulfill an unlawful

demand. The authenticity of the letter is not in dispute. The defence,

5 apeal352.02

however, contends, that a holistic reading of the letter Exhibit 55 does

not take the case of the prosecution any further and au contraire, the

contents of the letter Exhibit 55 probablises the defence that Kavita

committed suicide due to health issues.

5. The learned Sessions Judge has also attached significant

importance to the letter Exhibit No.55 and to the fact that the suicidal

death of Kavita is in close proximity to the letter dated 11-6-1995.

Nothing is brought on record by either the prosecution or the defence

as to when was the letter Exhibit 55 received by P.W.1. The defence of

the accused is that P.W.1 had purchased certain goods on credit from

one Gokuldas Seta of Ner and all that P.W.1 Bhaurao was being

impressed upon was to clear the said dues. The learned Counsel for

the accused invites my attention to the contents of the letter which,

other than asking or rather warning P.W.1 to make the payment to the

shop keeper also make a reference to the ill health of the deceased

Kavita. It would be apposite to consider the contents of said letter

Exhibit 55, which reads thus :

" Jheku ekekthl lizse ueLdkj]

fo-fo- fpB~Bh ns.;kl dkj.k dh] nqdkunkjkps iSls ;sR;k 'kqdzokjP;k vkr dks.kR;kgh gkyrhr ikBfo.ks- ukghrj dke Qkjp okbZV

6 apeal352.02

gksbZy- gs xks"V pkaxY;k fjrhus y{kkr ?;k dkj.k nqdkunkj Qkjp fc?kMyk vkgs vkf.k dforkph rC;sr fBd ukgh- nksu osGk nok[kkuk dsyk rjhgh tkxsoj vkyh ukgh-

                    dGkos vkiykp tkobZ                                lgh
                                                              rk-11-6-96 eaxGokj"

True it is that the language of the letter is a bit harsh and

brusque. P.W.1 Bhaurao is called upon to make the payment to the

shop keeper and is warned that if the payment is not made by coming

Friday (since the letter appears to have written on 11-6-1996

(Tuesday) coming Friday would be 14-6-1996) serious consequences

may ensue since the shop keeper is very annoyed. The letter then

proceeds to recite and that the deceased Kavita is not keeping good

health and that she was taken to the hospital twice but to no avail.

The Investigation officer does not appear to have made

any effort to investigate the possibilities which emerge from the

contents of the letter. The letter was seized from P.W.1 Bhaurao on

21-6-1996. No attempt appears to have been made by the

Investigating Officer to ascertain the name and identity of the shop

keeper and to further ascertain as to which goods were purchased and

from whom was the credit amount due and recoverable. The learned

Sessions Judge has observed that the defence did not examine the shop

7 apeal352.02

keeper nor did the defence bring material on record to prove the

defence that the letter was addressed by the accused to P.W.1 in

connection with the purchase made on credit by P.W.1 from the shop

keeper at Ner. I am afraid, the accused was under no burden to prove

the defence beyond reasonable doubt muchless by examining the shop

keeper as a defence witness. It is axiomatic from a bare perusal of the

contents of Exhibit 55 that the possibility that the reference was to

payment of some amount to the shop keeper against goods purchased

on credit by P.W.1 Bhaurao is a real and not fanciful possibility. The

Investigating Officer could have and ought to have investigated in the

obvious direction and the failure of the accused to examine the shop

keeper as a defence witness cannot be held against the accused.

Pertinently, the same letter makes a reference to the ill health of Kavita

and to the fact that despite hospitalization or visits to the hospital twice

there was no relief. Holistically viewed, the letter Exhibit 55 does not

assist the prosecution in bringing home the charge. Au contraire, as is

submitted by the learned Counsel for the accused, the defence is

probablised on the touchstone of preponderance of probabilities.

6. The evidence of P.W.1, P.W.2 and P.W.3, the father,

mother and uncle of deceased Kavita respectfully is not sufficient to

8 apeal352.02

establish that Kavita was subjected to cruelty within the meaning of

Explanation (a) or Explanation (b) to Section 498-A of the Indian Penal

Code. The vague and general statements of P.W.1 to P.W.3 that Kavita

told them that the accused was demanding amount and used to harass

her are not sufficient to establish the charge of cruelty. The evidence is

sketchy and the prosecution witnesses have not come out with any

specific instance of cruelty nor are the details of the alleged cruelty

forthcoming. The learned Sessions Judge has acquitted accused 3 and

accused 4 against whom P.W.1 to P.W.3 have in unison alleged some

or the other overt act such as making an unlawful demand or

instigation. It is not uncommon that the family members of the

deceased woman, traumatized by the death of their near and dear one,

tend to implicate the husband and his family members, actuated by a

sense of anger and the perception that the husband and his family

could be in somewhere responsible for the death. The evidence of

relatives is not necessarily that of interested witnesses and indeed may

be the only evidence available to the prosecution to prove that the

deceased woman was subjected to cruelty. But then, such evidence

must be tested with some caution in the absence of specific instances of

cruelty or the necessary particulars or details thereof. The statement in

the deposition of P.W.1 Bhaurao that accused used to beat Kavita is

9 apeal352.02

shown to be an omission. The statement that Kavita told Bhaurao that

if the amount is not paid, accused will beat her, is again an omission.

P.W.1 Bhaurao admits that the accused owns field property although

he claims ignorance of the extent thereof. It is suggested to P.W.1

Bhaurao that he purchased grocery articles from a shop keeper one

Gokuldas Seta of Ner, which suggestion he denies. P.W.1 Bhaurao

admits that the newly born girl child was aged one or two months

when Kavita committed suicide. He, however, denies the suggestion

that Kavita was not keeping well and was taken to the dispensary on

three or four occasions. P.W.2 Shanti Pawar, the mother of the

deceased Kavita, has deposed that according to Kavita, she was beaten

by the accused. She has deposed that whenever Kavita used to come to

her parental house, she used to disclose about the ill-treatment. The

statement in the examination-in-chief that the accused conveyed to

Kavita that in case the amount is not brought, her life will be in danger,

is shown to be an omission. The witness is not in a position to give the

details of visits by Kavita to her parental home like the day or month of

the visits. Ramesh Pawar who is examined as P.W.3 states that when

Kavita used to come to the village, she used to visit him and tell that

the accused and his mother were demanding money from her parents

and that they used to beat her. This witness admits to have never

10 apeal352.02

visited the matrimonial house of Kavita even on the occasion of birth of

Kavita's daughter.

7. In my opinion, the evidence of P.W.1 to P.W.3 is grossly

inadequate to come to a conclusion that Kavita was subjected to cruelty

within the meaning of Explanations (a) and (b) to Section 498-A of the

Indian Penal Code. Since the prosecution has failed to prove that the

deceased Kavita was subjected to cruelty, the statutory presumption

under Section 113-A of the Indian Evidence Act is not activated. It is

axiomatic, that since it is not proved that the deceased Kavita was

subjected to cruelty, the charge under Section 306 of the Indian Penal

Code must necessarily fail.

8. The judgment and order dated 27-6-2002 in Sessions Trial

174/1996 delivered by the learned Additional Sessions Judge,

Yavatmal is set aside. The accused is acquitted of the offence

punishable under Section 498-A and Section 306 read with Section 34

of the Indian penal Code. The bail bond of the accused shall stand

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

JUDGE adgokar