Lakhanlal Ramkishor Patalbanshi vs State Of ...
2017 Latest Caselaw 6967 Bom

 apeal653.02.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.653 OF 2002

          Lakhanlal Ramkishor Patalbanshi,
          Aged about 34 years,
          R/o Mana, Tq. Murtijapur,
          Dist. Akola.                 ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through P.S.O. Mana,
          District Akola.                           ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Ms. Rajasi A. Mardikar, Advocate h/f Shri A.S. Mardikar,
          Senior Advocate for Appellant.
          Shri A.V. Palshikar, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            11    SEPTEMBER, 2017.


 ORAL JUDGMENT


 1]               Exception is taken to judgment dated 22.11.2002 in

Sessions Trial 223/1999 delivered by the 1 st Ad hoc Additional

Sessions Judge, Akola, by and under which, the appellant is

convicted for offence punishable under section 498-A of the I.P.C.

and for offence punishable under section 306 of the I.P.C. and is

sentenced to suffer rigorous imprisonment for one year and seven

years respectively.

2] Heard Ms. Rajasi Mardikar, the learned counsel for

the appellant and Shri A.V. Palshikar, the learned Additional

Public Prosecutor for the respondent/State.

3] The genesis of the prosecution is an oral report

(Exh.16) dated 01.06.1999 lodged by Hariprasad Kashyap at

Police Station Mana, the gist of which is thus:-

Hariprasad Kashyap stated in the police report that the

marriage of his daughter Saroja and Lakhanlal Ramkishor

Patalbanshi was solemnized on 08.05.1998. Saroja visited her

parental house at Sukali on the occasion of Ashadhi, Nagpanchmi,

Raksha Bandhan, Diwali and Holi. Hariprasad Kashyap

(hereinafter referred to as "the informant") further states that he

went to Mana to bring Saroja on the occasion of the marriage of

son of the informant. During the said period, Saroja conveyed to

the informant that Lakhanlal and his mother Fulkali are

demanding Rs.30,000/- "for the purpose of service" and a two

wheeler as well and that on her refusal Lakhanlal and his mother

Fulkali are harassing her. Informant further states that Lakhanlal

came to Sukali to escort Saroja back to her matrimonial home on

10.05.1999. Saroja told to the informant that due to harassment

she would continue to stay in the parental home for one to one

and half month. The informant pacified Saroja and told her that

he would come to her matrimonial house after 15 days and would

settle all the problems. The informant further states that Saroja

had made disclosure about the demand to his other son Bhaiyalal

and to his friend Rajendra Gawande. The informant further states

that since Saroja was ill-treated by her husband Lakhanlal and his

mother Fulkali, she was driven to commit suicide. On the basis of

the said oral report First Information Report Exh.17 was

registered and offence punishable under section 498-A and 306 of

I.P.C. against Lakhanlal and Fulkali.

4] The completion of the investigation led to

charge-sheet being submitted in the Court of the Judicial

Magistrate First Class, Murtizapur who committed the case to the

Sessions Court. The Sessions Judge framed charge at Exh.12.

Both the accused pleaded not guilty and claimed to be tried.

The defence of the accused is of false implication. In the statement

recorded under section 313 of the Code of Criminal Procedure a

specific defence is taken that Saroja was suffering from

schizophrenia and was being treated by one Dr. Ramkumar Gujar.

The said Doctor is examined as defence witness 1.

5] The learned Sessions Judge was pleased to acquit

Fulkali the mother of the appellant Lakhanlal (hereinafter referred

to as "the accused") and convict the accused for offence

punishable under section 498-A and 306 of I.P.C.

6] Concededly, Saroja committed suicide on 31.05.1999

within less than one year and a month of the marriage. That the

death was suicidal was not challenged by the defence. The central

issue is whether Saroja was subjected to cruelty within the

meaning of explanation (a) and (b) of section 498-A of I.P.C. and

whether the prosecution has proved beyond reasonable doubt that

Saroja was forced to commit suicide due to the ill-treatment to

which she was allegedly subjected.

7] The informant who is the father of Saroja is examined

as P.W.1. He states that there was no complaint or grievance from

Saroja when she came to her parental house on the occasion of

Nagpanchami, Diwali and Holi. P.W.1 states that it was on the

occasion of the marriage of Bhaiyalal that Saroja conveyed that

the accused had asked her to demand Rs.30,000/- from her father

(P.W.1). Saroja conveyed that the accused has received interview

call.

8] P.W.1 states that since he did not have the financial

capacity he could not give Rs.30,000/- to Saroja. Saroja went to

her matrimonial house along with her husband unwillingly since

P.W.1 did not give Rs.30,000/-.

9] He states that Saroja committed suicide on

31.05.1999 by hanging herself. In the cross-examination, P.W.1

admits that the accused attended the marriage of his son. P.W.1

further admits that whenever Saroja used to come to her parental

house on the occasion of festivals accused used to accompany her

and Saroja used to return to her matrimonial home along with the

accused. P.W.1 further admits that the father of the accused is in

service and owns 8 to 10 acres of land. He further admits that he

did not inquire from the accused regarding the demand of

Rs.30,000/-. P.W.1 admits that the financial position of the

accused is sound. P.W.1 admits that he did not complaint to the

Police who were recording the panchnama of the dead body of

Saroja about the ill-treatment. He admits that his wife and son

halted at Mana on the night of 31.05.1999. P.W.1 states that after

the funeral he went to Police Station Mana for lodging complaint

and was asked to come in the morning for lodging the report.

P.W.1 states that he lodged the oral report Exh.16 at Police

Station Mana on 01.06.1999 at 01:00 p.m. P.W.1 admits that due

to the death of Saroja and he and his relatives were unhappy and

that prior to lodging report he and his son deliberated and then

decided to lodge report. He denies the suggestion that there was

some misunderstanding between P.W.1 and the accused since

immediately after the death of Saroja, P.W.1 demanded the

articles given in marriage and the accused told him that the

articles will be returned after somedays, which annoyed P.W.1.

Certain omissions are brought on record. It is brought on record

that in the statement P.W.1 has not disclosed that Saroja conveyed

that the accused had asked her to demand Rs.30,000/- for his

employment and on that issue he was harassing her.

10] Bhaiyalal Kashyap the brother of deceased Saroja is

examined as P.W.2. His version as regards the demand is

substantially inconsistent with that of P.W.1. P.W.2 states that

Saroja disclosed to him, after 4-5 months from marriage, that

accused had asked Saroja to bring from P.W.1 two wheeler and

Rs.30,000/-. Saroja told P.W.2 that accused needed Rs.30,000/-

to secure employment. P.W.2 states that when Saroja made the

disclosure his friend Rajendra Gawande was present. P.W.2

further states that according to Saroja she was harassed and

physically beaten by both the accused. P.W.2 states that after his

marriage on 07.05.1999 Saroja again conveyed to P.W.2 that the

accused had asked her to bring Rs.30,000/- and two wheeler.

P.W.2 states that even on this occasion his friend Rajendra

Gawande was present. P.W.2 claims that Saroja told him that both

the accused were harassing and beating her. P.W.2 states that on

12.05.1999 Saroja was weeping when she went to matrimonial

home with her husband. It is brought on record that the statement

that Saroja came to the residence of P.W.2 after 4 to 5 months of

the marriage and conveyed to P.W.2 that the accused 1 had asked

her to bring two wheeler and Rs.30,000/- from P.W.1 and that she

was harassed and beaten, is an omission. The statement that

P.W.3 Rajendra Gawande was present when Saroja made to

disclosure is also brought on record as an omission. The statement

that when Saroja came for the marriage, she told P.W.2 about the

demand and the harassment in presence of Rajendra Gawande is

also an omission. The statement that when Saroja went to

matrimonial home on 12.05.1999, she was weeping is again an

omission.

11] Rajendra Gawande, who according to P.W.2 was

present on the two occasions on which Saroja disclosed the

demand and the ill-treatment is examined as P.W.3. The evidence

of Rajendra Gawande is absolutely vague and unreliable. P.W.3

states that after marriage Saroja used to come to his residence and

he was also visiting terms to parental home of Saroja. P.W.3 states

that Saroja told him that she was subjected to harassment from

accused 1 who had asked her to bring Rs.30,000/- from her

parents. The evidence of P.W.2 and P.W.3 is at variance. P.W.2

has made concerted attempt who introduce P.W.3, admittedly a

friend of P.W.2, as a person who co-incidentally or otherwise

happened to be present when the deceased Saroja made the

disclosure of the demand and harassment to her brother P.W.2.

The disclosures allegedly made by Saroja were two wheeler and

Rs.30,000/- and harassment and beating. However, P.W.3 only

vaguely states that Saroja told him that she was subjected to

harassment from accused 1 and was asked to bring Rs.30,000/-

from her parents. P.W.3 is not supporting or corroborating the

version of P.W.2 that the disclosures were made by deceased

Saroja to her brother P.W.2 and P.W.3 happened to be present.

The versions of P.W.2 and P.W.3 are also discrepant on the

demand and the physical ill-treatment. P.W.3 makes no reference

to the two wheeler nor does he make any reference to the beating

or physical ill-treatment.

12] P.W.6, who was then attached to Police Station Mana

as Assistant Sub-Inspector has admitted in the cross-examination

that P.W.1 did not visit Police Station Mana in the night of

31.05.1999 to lodge the report. P.W.5 admits that P.W.1 came to

Police Station Mana for the first time at 01:00 p.m. on

01.06.1999. He admits that the statements of P.W.1, P.W.2 and

P.W.3 were recorded by P.S.I. Muley. He further admits that

during the course of investigation P.S.I. Muley had recorded the

statements of the neighbours of accused. The admission that

P.W.1 did not visit the Police Station prior to 01:00 p.m. on

01.06.1999 is of some relevance since both P.W.1 and P.W.2 have

deposed that they were at the Police Station for some hours in the

night of 31.05.1999 and were asked by the Police to come on

01.06.1999 to lodge the report. The effort of the prosecution

witnesses was to demonstrate that the report was lodged with

promptitude and was not the outcome of ill advice or instigation

from the unhappy lot of the relatives of the deceased Saroja.

The Police Officer Mr. Muley who has substantially conducted the

investigation has not been examined for reasons not clear from

the record.

13] Ms. Rajasi Mardikar, the learned counsel for the

accused submits that the prosecution has not established offence

punishable either under section 498-A or 306 of I.P.C. much less

beyond reasonable doubt. Ms. Mardikar would submit, that the

evidence of the father P.W.1 is that Saroja conveyed to P.W.1 or

on after 07.05.1999 (marriage of P.W.2 was solemnized on

07.05.1999) that the accused demanded Rs.30,000/- and that the

accused had received interview call. The vague statement that

Saroja disclosed harassment and that accused was beating her, is

an omission. Ms. Mardikar would further urge, that the evidence

of P.W.2 must be discarded on the short ground that every

material statement is proved to be an omission. The learned

counsel invites my attention to paragraph 4 and 5 of the

examination-in-chief to substantiate her contention that the

omissions relate to vital and significant facts and must be treated

as contradiction. The learned counsel would emphasis that the

failure of the prosecution to examine scribe of the 161 statement

has caused serious prejudice to the accused in as much as the

entire evidence of P.W.2 or at any rate substantial part of the

evidence is brought on record as an omission. The learned counsel

would then urge that the evidence of P.W.3 must be ignored and

discarded as he is obviously a planted witness. P.W.3, in any

event, has neither supported nor corroborated the evidence of

P.W.1 and P.W.2, is the submission.

14] Ms. Rajasi Mardikar invites my attention to the

judgment of the Hon'ble Supreme Court in Mangat Ram vs. State

of Haryana (2014) 12 SCC 595 and in particular to the following

observation to paragraphs 28, 29, 30, 31 and 33 which read thus:

28. We have already indicated that the trial court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been

properly appreciated by the courts below. Section 306 IPC reads as under:

"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."

Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.

29. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113-A of the Evidence Act could be raised. Section 113-A of the Evidence Act reads as follows:

"113-A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of a 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."

30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.

31. In this connection, we may refer to the judgment of this Court in Hans Raj v. State of Haryana, wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that, unlike Section 113-A of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case,

which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC.

33. In Pinakin Mahipatray Rawal v. State of Gujarat, this Court has examined the scope of Section 113-A of the Evidence Act, wherein this Court has reiterated the legal position that the legislative mandate of Section 113-A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, as per the presumption defined in Section 498-A IPC, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. The court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide. In the instant case, there is no evidence to show whether it was an accidental death or whether the deceased had committed suicide.

Relying on the enunciation of Hon'ble Supreme Court, Ms.

Rajasi Mardikar contends that on the factual matrix the statutory

presumption under section 113-A is not available since the

prosecution has not established beyond reasonable doubt that the

deceased was subjected to cruelty.

Ms. Rajasi Mardikar also relies on the following observation

of the Hon'ble Supreme Court in Pinakin Mahipatray Rawal vs.

State of Gujarat (2013) 10 SCC 48 and in particular to paragraph

26 which reads thus:

26. Section 113-A only deals with a presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extramarital affair was of such a degree which was likely to drive the wife to commit suicide.

The learned counsel for the accused would further rely on

paragraph 16 of the Hon'ble Supreme Court judgment M. Mohan

vs. State Represented by the Deputy Superintendent of Police 2011

ALL MR (Cri) 1659 (S.C.) and in particular to paragraph 16 which

reads thus:

16. The appellants contended that the learned Single Judge, after examining the F.I.R., R.D.O. report and Statements of the Witnesses under Section 161, Cr.P.C. found that there were no allegations against the appellants herein from the inception either by the complainant or by the mother of the deceased and has further held that there was no element of dowry related harassment and/or any cruelty meted out to the deceased by her sister-in-law or for that matter by any of the accused. In view of the above categorical findings, the learned Single Judge quashed the charges under Sections 304-B and 498-A, I.P.C. However, the learned Single Judge failed to appreciate that on the basis of the material available on record and in the absence of any allegation, if no offence is made out against the appellants under Sections 304-B and 498-A, then the appellants cannot be convicted under Section 306, I.P.C. It is stated that to attract the provisions of Section 306, I.P.C., the allegations as to the existence of cruelty, dowry harassment and abetment to suicide are all integrated. In absence of any allegations under Sections 498-A and 304-B, I.P.C. provisions of Section 306, I.P.C. cannot be attracted.

The reliance on the enunciation of law in M. Mohan is to

buttress the submission that if offence punishable under section

498-A is not established, the accused cannot be convicted under

section 306 of I.P.C.

15] Ms. Rajasi Mardikar, the learned counsel for the

appellant also relies on the following observation in Sanju alias

Sanjay Singh Sengar v. State of M.P. 2002 Cri. L.J. 2796 (SC) to

contend that even if the entire evidence is taken at face value, the

necessary mens rea is not proved and the prosecution has not

established that the accused instigated deceased Saroja to commit

suicide and relies in particular on the following observations in

paragraphs 7 to 13 which read thus:

7. Section 107, I.P.C. defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing.

8. Before we advert further, at this stage we may notice a few decisions of this Court, relevant for the purpose of disposal of this case.

9. In Swamy Prahaladdas v. State of M.P. and Anr., 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306, I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

10. In Mahendra Singh v. State of M.P. 1995 Supp. (3) SCC 731, the appellant was charged for an offence under Section 306, I.P.C. basically based upon the dying declaration of the deceased, which reads as

under:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."

11. This Court, considering the definition of 'abetment' under Section 107, I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

12. In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306, I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:

"A word uttered in a fit of anger of emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not, expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."

13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25 th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27 th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25 th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25 th July, 1998 when it is alleged that the appellant had used the

abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.

16] Ms. Rajasi Mardikar, the learned counsel has also

drawn my attention to the judgment of the Hon'ble Supreme

Court in Rajesh Sharma & ors. vs. State of U.P. & Anr. delivered on

27.07.2017 and in particular to paragraph 14 which reads thus:

14. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the State of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in

the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable.

My attention is drawn to the directions issued by the

Hon'ble Supreme Court in paragraph 19 of the judgment.

Ms. Rajasi Mardikar would submit that the case at hand is also a

glaring example of the misuse of the provisions of section 498-A of

I.P.C. which fell for consideration before the Hon'ble Supreme

Court and necessitated the directions incorporated in paragraph

19 of the judgment, which reads thus:-

19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected.

(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed

within four months from today;

iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/custody and interest of justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving tangible physical injuries or death.

17] Shri A.V. Palshikar, the learned A.P.P. makes a

valiant attempt to support the impugned judgment. The learned

A.P.P. submits that the cruelty is established and the statutory

presumption under section 113-A can be drawn. The learned

A.P.P. concedes that the statutory presumption under section

113-A enables the Court to draw a presumption as to abatement

of suicide only if it is proved that the husband or any relative had

subjected the woman to cruelty. The learned A.P.P. would submit

that the evidence of P.W.1, P.W.2 and P.W.3 is sufficient to

establish that the accused subjected deceased Saroja to cruelty

and in view of the statutory presumption under section 113-A, the

conviction is unexceptionable.

18] Section 498-A 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 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.

19] I am inclined to agree with Ms. Rajasi Mardikar, the

learned counsel for the appellant that the evidence on record is

grossly insufficient to record a finding that the accused subjected

the deceased Saroja to ill-treatment within the meaning of

explanation (a) and (b) of section 498-A of I.P.C. The learned

counsel is right in contending that P.W.3 Rajendra Gawande

appears to have been introduced only to enthuse or lend

credibility to the evidence of P.W.1 and P.W.2 who are related

witnesses and is projected as an independent witness to the

alleged disclosures by deceased Saroja to overcome the rule of

prudence that the testimony of related witnesses must be tested

with some caution. That apart, the evidence of P.W.3 is implicitly

unreliable and does not take the case of the prosecution any

further. The evidence of P.W.2 who is the brother of the deceased

must be discarded as the evidence is marred to many

contradictions and inter se discrepancies and inconsistencies with

the evidence of P.W.1. The evidence of P.W.2 is not at all

confidence inspiring.

20] The evidence of father of P.W.1 is to the effect that

Rs.30,000/- was demanded to secure employment. P.W.1 has not

stated the particulars of harassment and indeed, to that extent I

must hold the evidence as unreliable. P.W.1 admits that the

financial position of the accused is sound, he further admits that

the father of the accused owns 8 to 10 acres land and that the

accused was an agriculturist since prior to marriage with Saroja.

P.W.1 admits that on all festival occasions Saroja was

accompanied by accused who also attended the marriage of

P.W.2. P.W.1 further admits that he did not make any inquiry

from the accused as regards the demand. I am afraid, the

conviction cannot rest on the evidence of P.W.1 which is vague,

lacking in material particulars and to certain extent rendered

suspect due to the contradictions brought on record. Be it noted,

that the version of P.W.1 and P.W.2 that they visited the Police

Station Mana in the night of 31.05.1999 and were there for some

hours is not supported by P.W.5 who has deposed that P.W.1

came to the Police Station for the first time at 01:00 p.m. on

01.06.1999. The possibility, that the pain and anguish due to the

traumatic death of Saroja and the perceived grievance that the

accused may be responsible, prompted P.W.1 to falsely implicate

the accused, is a real possibility.

21] In my opinion, the prosecution has failed to prove

beyond reasonable doubt that deceased Saroja was subjected to

cruelty envisaged explanation (a) and (b) of section 498-A of

I.P.C. It is axiomatic, that since cruelty is not established, charge

under section 306 of I.P.C. must necessarily fell.

22] I am not persuaded to uphold the judgment

impugned and I set aside the same.

23] The accused is acquitted of offence punishable under

section 498-A and 306 of I.P.C.

      24]           The bail bond stands discharged.



      25]           The appeal is allowed. The fine amount paid by the

      accused, if any, shall be refunded to him.



                                                          JUDGE
NSN