Tarachand S/O Rama Uikey vs State Of ...
2017 Latest Caselaw 7319 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.309 OF 2002


 Tarachand s/o Rama Uikey,
 Aged 40 years, Occupation - Labourer, 
 R/o Bampewada, Tahsil - Sakoli,
 District - Bhandara.                                          ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 P.S.O. Sakoli, District Bhandara.                             ....       RESPONDENT

 ______________________________________________________________

             Shri R.R. Prajapati, Advocate for the appellant, 
            Shri A.V. Palshikar, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 19 & 20 th SEPTEMBER, 2017 th

ORAL JUDGMENT :

The appellant assails the judgment and order dated

25-4-2002 in Sessions Trial 53/1999, delivered by the learned 1 st

Ad hoc Additional Sessions Judge, Bhandara, by and under which the

appellant (hereinafter referred to as the "accused") is convicted for

offences punishable under Sections 306 and 498-A of the Indian Penal

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Code and is sentenced to suffer rigorous imprisonment for three years

and two years respectively and to payment of fine of Rs.2,000/- and

Rs.1,000/- respectively.

2. The prosecution case as can be culled out from the

complaint lodged by Nathu Sitaram Tekam on 08-4-1999 is thus :

The complainant is the maternal uncle of Shobha, the

eldest daughter of Sumitra, the sister of the complainant. Shobha was

residing with the complainant since her childhood and her marriage

was solemnized with the accused in the year 1987. Two sons namely

Santosh and Ankush are born from the wedlock. The complainant

Natthu had presented one she-buffalo to Shobha as marriage gift.

Since marriage, the accused used to beat Shobha under the influence

of liquor. A case was instituted in the Court at Sakoli and by a judicial

order the accused Tarachand was directed to hand over custody of the

sons to Shobha. The complaint states that the proceedings were

instituted since the accused did not allow Shobha to cohabit with him.

Pursuant to the judicial order, the accused, Shobha and the sons

started residing together. The complaint further states that after few

days, she-buffalo gifted to Shobha was sold by Shobha's mother for

Rs.4,000/-. The accused took Rs.2,600/- and spent the money on

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liquor. Shobha's mother did not hand over remaining amount of

Rs.1,400/- to the accused which annoyed the accused, who then

physically assaulted Shobha after consuming liquor. The accused had

an extra marital relationship with a woman working as helper and the

said woman stayed in the house of Shobha for 15 to 20 days. Shobha

was beaten even in the presence of the said woman, is the recital in the

complaint. The complaint further states that due to the ill-treatment,

Shobha committed suicide on 07-4-1999 by jumping into the well.

3. On the basis of the complaint, first information report

(Exhibit 13) was registered and after completion of the investigation,

charge-sheet for offences punishable under Sections 306 and 498-A of

the Indian Penal Code was submitted in the court of the Judicial

Magistrate First Class, Sakoli who committed the case to the Court of

Sessions. The learned Sessions Judge framed charge at Exhibit 8, the

accused pleaded not guilt and claimed to be tried. The defence as is

discernible from the statement under Section 313 of the Criminal

Procedure Code of the accused is of total denial.

4. The learned Counsel for the accused Shri Prajapati submits

that there is absolutely no evidence on record to bring home the

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charge either under Section 306 or 498-A of the Indian Penal Code

beyond reasonable doubt. The evidence is too vague, sketchy and

marred by inter se inconsistencies and discrepancies, is the submission.

The learned Counsel for the accused would submit, that even if the

allegations are taken at face value, cruelty within the meaning of

Explanations (a) and (b) of Section 498-A is not established. A fortiori

offence punishable under Section 306 of the Indian Penal Code is also

not established.

5. Per contra, the learned Additional Public Prosecutor

submits that the evidence on record is convincing and cogent and the

learned Sessions Judge was more than justified in convicting the

accused for offences punishable under Sections 306 and 498-A of the

Indian Penal Code.

6. The complainant/informant is examined as P.W.1. In the

examination-in-chief, a general and vague statement is made that the

accused was beating and ill-treating Shobha. P.W.1 states that he

came to know that since the accused beat Shobha, her father went to

her matrimonial home and escorted Shobha back to her parental

home. P.W.1 states that since the accused promised to treat Shobha

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well, her father sent her with the accused. P.W.1 has also deposed that

the accused married the said labour after the death of Shobha. In the

cross-examination, P.W.1 admits to have visited the matrimonial home

of Shobha only twice. The last visit is 3 to 4 years prior to the death of

Shobha. P.W.1 claims that he was informed about the ill-treatment by

Shobha. P.W.1 admits that he did not know the name of the woman

with whom, according to P.W.1, the accused had developed illicit

relationship. He admits that he did not know the name of the second

wife of the accused nor the age of the woman, nor the date or month

of the marriage. P.W.1 denies the suggestion that he lodged the report

since he fell profoundly sad due to the demise of Shobha.

7. The father of the deceased Shobha, Sukharam Dhurve is

examined as P.W.3. He states that the accused used to beat Shobha

but then she was not narrating the ill-treatment to P.W.3. He then

makes a reference to the sale of the she-buffalo and states that the

accused was quarreling with him for the balance amount. P.W.3 states

that since he did not make the payment of the balance amount to the

accused, Shobha used to be beaten by the accused. P.W.3 states that

since the accused was physically ill-treating Shobha, she had filed

judicial proceedings. However, in the cross-examination. P.W.3 admits

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that Shobha did not tell him about the beating. He admits that he did

not know the cause of death. He admits that he did not know whether

the accused married again after the death of Shobha.

8. The mother of the deceased is examined as P.W.4. She

states that she was not informed about ill-treatment by her deceased

daughter. At this stage, permission was sought under Section 154 of

the Indian Evidence Act to put questions in the nature of cross-

examination. The said permission was granted by the learned Sessions

Judge. In response to the questions put by the learned Public

Prosecutor, P.W.4 does support the prosecution to the extent she states

that the accused used to beat Shobha, the amount of the share in the

she-buffalo was spent by the accused in the liquor. That since the

remaining amount was not given to the accused, he ill-treated Shobha.

P.W.4 has also deposed that the accused had developed an extra

marital relationship with a labour working with him and that he was

ill-treated Shobha in view of the said relationship. The mother of the

deceased was then cross-examined on behalf of the accused. She

admits that as and when she visited the matrimonial house of Shobha,

she did not notice any dispute and indeed she admits that she noticed

"good atmosphere" in the house. She admits that Shobha never told

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her about any ill-treatment or harassment from the accused. She states

that P.W.1 lodged the report since she felt very sad due to the death of

Shobha.

9. P.W.5 is the sister of P.W.4. She did not support the

prosecution. The learned Sessions Judge permitted learned Public

Prosecutor to put questions in the nature of cross-examination.

Nothing is elicited in the cross-examination by the learned Public

Prosecutor to assist the prosecution. In the cross-examination on

behalf of the accused, she admits that she was not aware of any

dispute between Shobha and the accused and that Shobha did not

complain about the accused. She states that Shobha was emotionally

weak. "Weak by brain", is the expression used.

10. At this stage, it would be apposite to reproduce Section

498-A of the Indian Penal Code, which 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 file.

Explanation - For the purpose of this section, "cruelty"

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

Section 498-A of the Indian Penal Code was inserted by

Act 46 of 1983, with the object of preventing torture and ill-treatment

to a woman by her husband or by relatives of her husband. In order to

bring home the charge under Section 498-A of the Indian Penal Code,

it would be necessary for the prosecution to prove that the woman was

subjected to cruelty as defined in the explanation to Section 498-A of

the Indian Penal Code. 'Cruelty' is defined to mean 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) and harassment of a woman

whether such harassment is with view to coercing 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.

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11. It is well settled that not every kind of cruelty constitutes

an offence under Section 498-A of the Indian Penal Code. Cruelty for

the purpose of Section 498-A of the Indian Penal Code may be

different from cruelty envisaged under other statutory provisions

including the cruelty necessary to establish a matrimonial misconduct

or offence.

12. It would be apposite to refer to section 306 of the Indian

Penal Code, which read thus:-

"Section 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."

It is well settled that mens rea is a sine qua non to bring

home charge under section 306 of the Indian Penal Code and it is

necessary for the prosecution to establish that the accused had the

intention to aid or instigate or abet the deceased to commit suicide.

Abetment is held to involve a mental process of instigating a person or

intentionally aiding a person in doing of a thing. The conviction

cannot be sustained unless a positive act on the part of the accused to

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instigate or aid in commission of suicide, is established.

13. The evidence on record will have to be tested on the anvil

and touchstone of the ambit of Section 498-A of the Indian Penal

Code. Concededly, the suicide is after 12 years of the marriage. The

statement in the evidence of father of the deceased that she-buffalo

was sold and since the accused was not paid the entire sale proceeds,

the accused used to quarrel with P.W.1, is obviously not suggestive of

an unlawful demand within the meaning of Explanation (b) to Section

498-A of the Indian Penal Code. There is not even an iota of evidence

on record to suggest that accused made an unlawful demand and ill-

treated Shobha to coerce Shobha or her relatives to fulfill the unlawful

demand. The next question would be whether the evidence on record

proves that Shobha was subjected to cruelty within the meaning of

Explanation (a) to Section 498-A of the Indian Penal Code. For the

purpose of Explanation (a) cruelty must be a wilful conduct which is of

such a nature as is likely to drive the woman to commit suicide or to

cause grave injury or damage to life, limb or health (whether mental or

physical) of the woman. I am afraid, the evidence on record is grossly

inadequate to hold that the deceased Shobha was subjected to cruelty

within the meaning of Explanation (b) to Section 498-A of the Indian

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Penal Code. The evidence of P.W.4 who is the mother of the deceased

must be kept out of consideration since the credibility is rendered

vulnerable in view of her ever shifting stands. The mother of the

deceased initially did not support the prosecution. The learned Public

Prosecutor sought permission under Section 154 of the Indian

Evidence Act to put her questions in the nature of cross-examination,

in response to which she did depose in favour of the prosecution

version. But then, immediately in the cross-examination on behalf of

the accused, she has given admissions wiping out the effect of the

earlier testimony. The learned Additional Public Prosecutor would

urge that the testimony of a witness who has not supported the

prosecution is not washed out and there is neither a recognized rule of

evidence nor a judicial precedent that the testimony of a "hostile

witness" must be discarded altogether. The learned Additional Public

Prosecutor is right in contending that the testimony of such a witness

cannot be ip so facto discarded. However, in the factual matrix, I am

not in a position to hold that even some part of the testimony of P.W.4

can be taken into consideration, her vacillating stand destroys the

credibility of evidence and it would be unsafe to rely in any manner

and to any extent on the evidence of P.W.4. P.W.5 has not supported

the prosecution and nothing is brought out in her cross-examination to

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take the case of the prosecution any further.

14. The evidence of father of the deceased P.W.3 is of little

assistance to the prosecution. The vague statement that accused used

to beat Shobha and that the accused quarreled with P.W.3 over the

non-payment of the balance sale proceeds of the she-buffalo is hardly

sufficient to suggest cruelty within the meaning of Explanation (a) or

(b) to Section 498-A of Indian Penal Code. That apart, the effect of the

statements in the examination-in-chief is wiped out by the admission

given in the cross-examination that the deceased did not tell P.W.5

that the accused beat her. P.W.3 admits that he did not meet the

accused again, that he has not visited the house after the death of

Shobha and that he is not aware whether the accused has solemnized

second marriage. The only witness whose evidence would need some

consideration from the perspective of the prosecution is P.W.1. Be it

noted, that there is absolutely no live link demonstrated on record

between the incident of sale of she-buffalo and the quarrel and cruelty

allegedly meted out by the accused to the non-payment of the sale

consideration and the death of Shobha. None of the witnesses of the

prosecution have stated that in which year the incident of sale of she

-buffalo took place. Concededly, the marriage was solemnized in 1987.

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The she-buffalo was a marriage gift. The she-buffalo must have been

gifted by P.W.1 to Shobha in 1987. Shobha died twelve years after the

marriage. Nothing is brought on record to clarify as to when and in

which year the she-buffalo sold. I have no hesitation in rejecting the

evidence of the prosecution that since the accused was not paid the

balance consideration of the she-buffalo, for whatever reason, the

accused subjected Shobha ill-treatment. The other allegation leveled by

P.W.1 is that the accused had developed an illicit relationship. An

extramarital relationship is morally unacceptable. However, an

extramarital relationship is not necessarily cruelty as is statutorily

defined in Section 498-A of Indian Penal Code in Explanations (a) and

(b). The last visit of P.W.1 to the matrimonial house of Shobha is

admittedly four years prior to the death of Shobha. The evidence of

P.W.1 is inconsistent with the evidence of the parents of the deceased

Shobha. The evidence is marred by exaggerations and embellishments.

I am not persuaded to hold that the evidence of P.W.1 is confidence

inspiring.

15. On a overall appreciation of the evidence, I am not

persuaded to agree with the learned Sessions Judge that offences

under Sections 498-A and 306 of the Indian Penal Code are proved

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beyond reasonable doubt.

16. I would set aside the judgment and order dated 25-4-2002

delivered by the learned 1st Ad hoc Additional Sessions Judge,

Bhandara in Sessions Trial 53/1999. The accused is acquitted of

offences punishable under Sections 498-A and 306 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.

The appeal is allowed and disposed of accordingly.

JUDGE adgokar/nikhare.