Shalikram S/O Kisan Gaikwad vs State Of Maharashtra,Thr.Its ...
2017 Latest Caselaw 7596 Bom

 apeal677of02.odt                           1



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


                     CRIMINAL APPEAL NO.677 OF 2002


 Shalikram s/o. Kisan Gaikwad,
 aged 38 years,
 R/o. Malegaon, 
 Tahsil Malegaon, 
 District Washim.                                            ...APPELLANT


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


 The State of Maharashtra,
 through its Police Station Officer,
 Police Station Malegaon, 
 District Washim.                                            ...RESPONDENT

   ----------------------------------------------------------------------------------------
          Mr. Anuj D. Hazare, (appointed) counsel for appellant.
          Mr. N.B. Jawade, APP for respondent / State.
   ----------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     27    SEPTEMBER, 2017.


 ORAL JUDGMENT

The appeal seeks to assail judgment and order dated

14.11.2002 in Sessions Trial 106 of 1998 delivered by the 2 nd

Additional Sessions Judge, Washim by and under which the

appellant (hereinafter referred as "the accused") is convicted of

offence punishable under section 306 and 498-A of the Indian

Penal Code ("IPC" for short) and sentenced to suffer rigorous

imprisonment for five years and two years respectively and to

payment of fine of Rs. 700/- and Rs. 200/- respectively.

2 Heard Shri. Anuj D. Hazare, learned counsel for the

appellant and Shri. N.B. Jawade, learned APP for the respondent /

State.

3 The learned counsel for the accused submits that the

only material on which the case of the prosecution rests is Exh. 32

which is the dying declaration of the deceased Ratnamala and the

testimony of Panjabai, the mother of the deceased who is

examined as PW 1. The learned counsel for the accused would

submit that even if the dying declaration Exh. 32 is taken at a face

value, the contents thereof do not assist the prosecution in

establishing the necessary ingredients of section 306 or 498-A of

IPC. The version attributed to the deceased Ratnamala in Exh. 32

is that the accused went to the Police Station to lodge a report

that the accused did not wish to maintain his wife. The deceased

Ratnamala returned to the residence of the accused alongwith the

accused and as the accused reiterated that he did not wish to

maintain Ratnamala and asked her to leave the house, Ratnamala

told the accused that she will pour kerosene on her person, the

accused did not object, Ratnamala poured kerosene from a bottle

on her person, took a matchbox and ignited the match stick and

set herself afire. The further recital in the dying declaration is

that none approached to extinguish the fire, someone poured

water on the person of Ratnamala. When Ratnamala sustained

complete burns, her husband took her to the Government Hospital

at Malegaon. Lastly, the recital is that since the accused refused

to maintain Ratnamala, she set herself on fire.

The learned counsel for the accused would submit that even

if the dying declaration is taken at face value, the contents do not

reveal that Ratnamala was subjected to cruelty within the

meaning of explanation (a) & (b) to section 498-A of IPC. The

contents further do not make out a case of abetment within the

meaning of section 306 read with section 107 of IPC, is the

submission. The learned counsel for the accused would further

submit that the only other evidence on record is the testimony of

Panjabai, the mother of the deceased who is examined as PW 1. Her

evidence is marred by omissions, contradictions and embellishments, is

the submission. A specific defence is taken, as is evident from the

statement recorded under section 313 of Code of Criminal

Procedure, that PW 1 was engaged in illicit liquor trade, she used

to visit the house of the accused and carry on the dubious activity

from the house of the accused. The visits of PW 1 were a source

of constant nuisance. The accused had in fact lodged a report

with the police station making a grievance of the nuisance caused

due to the illegal liquor trade of PW 1. The defence is more than

probabilized on the touchstone of preponderance of probabilities,

is the submission.

4 Per contra, the learned APP Shri. N.B. Jawade would

support the judgment and order impugned. He would submit,

that since there is no serious challenge, at least before this Court,

to the dying declaration, the contents thereof are more than

sufficient to establish that the deceased was subjected to cruelty

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

would submit that the cruelty to which Ratnamala was subjected

is sufficient to drive a women of ordinary sensitivity and prudence

to take the extreme step. The judgment impugned does not suffer

from any infirmity, on facts or in law, is the submission.

5 The learned counsel Shri. Hazare who is appointed to

represent the accused fairly does not seriously challenge the dying

declaration Exh. 32. The Medical Officer who is examined as PW

3 has proved that the deceased Ratnamala was in a fit condition,

physically and mentally, to give the statement. The evidence of

PW 3 and the evidence of PW 4 is sufficient to accept the

reliability and credibility of the dying declaration Exh. 32.

6 However, the learned counsel for the accused is more

than justified in contending that even if the dying declaration is

taken at face value, the contents thereof do not establish cruelty

within the meaning of explanation (a) and (b) to section 498-A of

IPC. Concededly, it is not the case of the prosecution that the

deceased was subjected to cruelty to coerce the deceased or her

family to fulfill any unlawful demand. The explanation (b) to

section 498-A, therefore, does not come into play. If the dying

declaration is read holistically, what is discernible is that the

accused did convey to the deceased that he did not wish to

maintain her. However, the fact that the accused conveyed to the

deceased that he did not wish to maintain her can not be read in

isolation or de hors the context. Concededly, the accused did not

take the law in his own hands and even according to the

prosecution version, since the dying declaration is pressed into

service by the prosecution, the accused went to the police station

to lodge the report. The deceased was aggrieved, and naturally

so. However, it is not possible to record a finding that the conduct

of the accused tantamounts to cruelty within the meaning of

explanation (a) to section 498-A of IPC.

7 It is well settled, that every unacceptable conduct

assuming that the conduct of the accused was either acceptable or

insensitive does not constitute cruelty. The cruelty which is

required to be established to constitute an offence under section

498-A of IPC is statutorily defined. The conduct which may

furnish a cause of action to seek relief in a matrimonial

proceedings or which may constitute a matrimonial misconduct

need not necessarily constitute cruelty within the meaning of

explanation (a) to section 498-A of IPC.

The learned counsel for the accused has rightly relied upon

the judgment in Atmaram s/o Raysingh Rathod vs. State of

Maharashtra (2013) 12 SCC 286 and in particular the following

observations of the Hon'ble Supreme Court in paras 9, 10, 11, 12,

15, 17 and 19 which read as under:

9. Section 498-A IPC and Section 113-A of the Evidence Act, 1872 are extracted hereinbelow:

"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."

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

Explanation.-- For the purposes of this section, 'cruelty' shall have the same meaning as in Section 498- A of the Penal Code (45 of 1860)."

10. A reading of Section 498-A IPC would show that if the husband or relative of the husband of a woman subjected such woman to cruelty, they shall be liable for the punishment mentioned therein. Moreover, the Explanation to Section 498-A IPC defines "cruelty" for the purpose of Section 498-A IPC, to mean (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. A reading of Section 113- A of the Evidence Act, 1872 will show that for the purposes of Section 113-A of the Evidence Act, 1872, "cruelty" shall have the same meaning as in Section 498-A IPC. Hence, to convict a husband or any relative of the husband of woman or to draw up presumption as to abetment of suicide by a married woman by her husband or any relative of her husband in case of suicide committed by a woman within a period of seven years from the date of her marriage, there must first be evidence to establish that such husband or the relative of her husband committed cruelty of the nature described in clauses (a) or (b) of the Explanation to Section 498-A IPC.

11. Therefore, the main question, which we have to decide in this case, is: whether there is any such evidence to establish beyond reasonable doubt that the appellant had subjected his second wife Purnabai, to cruelty either of the nature described in clause (a) or of the nature described in clause (b) of the Explanation to Section 498-A IPC.

12. It is not the case of the prosecution in this case that the appellant had subjected Purnabai to cruelty of the nature described in clause (b) of Explanation to Section 498-A IPC, as there is no allegation in this case that the appellant had harassed Purnabai with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or that he subjected Purnabai to harassment on account of failure by her or any person related to her to meet such demand. We have, therefore, only to decide whether the appellant treated Purnabai with cruelty of the nature described in clause (a) of the Explanation to Section 498-A IPC.

15. The aforesaid evidence of PW 1 establishes

that the appellant used to beat Purnabai and was not giving her food before he executed the undertaking in Ext. 47 on 17-4-1988. The drowning of Purnabai took place three months thereafter on 15-7-1988. For holding the appellant guilty of the offences under Sections 306 and 498-A IPC, there must be evidence of wilful conduct of the appellant towards Purnabai soon before her drowning which could have driven her to commit suicide and this is what PW 1 has said in his examination-in-chief on what happened before the drowning of Purnabai:

"Thereafter I took Purana to Bhandara in the house of Accused 1. Thereafter I brought her back to my house for rasai. She complained that there is ill-treatment going on though it has lessened. She complained to me that the accused was not providing her with meals and used to beat her. She also told that as the accused do not give her food she begs for food from others and even then I reached (sic sent) her with the hope that everything will be settled. Later on I received the news of her death. On hearing the death news of Purana I went to Bhandari. I found Purana and her daughter dead due to drowning in the well. I enquired there at Bhandarai and I came to know there was lot of beating given to Purana and hence she died on fall in the well (sic). I came to know that there was accidental death. I also came to know that Purana died along with her girl after falling in the well due to ill-treatment received by her from the accused persons. Then I went to Rural PS, Pusad and reported the matter. The report now read over to me is the same. It's contents are correct. It bears my thumb impression. It is at Ext.49. Printed FIR shown to me also bears my signature. It is at Ext. 50. Police recorded my statement."

17. It is thus clear from the evidence PW 1 and from the FIR lodged by him that he had no personal knowledge about the cause of the death of Purnabai but on enquiry at Bhandari he had come to learn that there was lot of beating of Purnabai and no food was given to her and for such ill-treatment she had jumped into the well with her daughter.

19. From the discussion of the aforesaid evidence on record, we find that the prosecution has not been able to prove beyond reasonable doubt that the appellant was guilty of any wilful conduct which was of such a nature as was likely to drive Purnabai to commit suicide. Rather, there appears to be some evidence in the depositions of PW 1 and PW 4 (father and sister of Purnabai) that Purnabai was sad due to a daughter being born to her and a son being born to the first wife of the appellant. These circumstances may have driven Purnabai to commit suicide by jumping into the well along with her daughter. Such a consequence from the mental state of Purnabai cannot be aground for holding that the appellant was guilty of cruelty within the meaning of clause (a) of the Explanation to Section 498-A IPC. We, therefore, hold that the presumption under Section 113-A is not attracted and the appellant cannot also be held guilty of abetting the suicide of Purnabai. We have to bear in mind this note of caution in State of W.B. v. Orilal Jaiswal (SCC p.90, para 17)

"17. ... the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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 of abetting the offence of suicide should be found guilty."

If the contents of the dying declaration are decided on the

anvil of the articulation of the law by the Hon'ble Supreme Court,

I had no hesitation in recording a finding that the contents of the

dying declaration do not make out a case of cruelty within the

meaning of explanation (a) and (b) to section 498-A of IPC.

8 Let me now consider the evidence of mother of the

deceased (PW 1), who is only witness examined to prove the

cruelty. Be it noted, that she has lodged the First Information

Report three days after the death of Ratnamala. No explanation is

forthcoming to explain why the F.I.R. was not lodged with

promptitude. PW 1 has made omnibus allegations in the

examination in chief to the effect that the accused ill-treated her

daughter Ratnamala. However, during the cross examination, the

material allegations are shown to be omissions and then the

omissions are proved during the cross examination of the scribe of

the 161 statement. I am afraid, the evidence of PW 1 is neither

reliable nor trustworthy nor confidence inspiring. Suggestions are

given to PW 1 in the cross examination to extract from PW 1 an

admission that she is facing multiple prosecutions for offences

under section Narcotic Drugs & Psychotropic Substances Act, 1985

and Bombay Prohibition Act,1949. It is true, and it is but natural,

that PW 1 has not admitted that she is facing multiple

prosecutions but then the answer is, an evasive, "I do not know

how many cases under the Narcotic Drugs & Psychotropic

Substances Act, 1985 and Bombay Prohibition Act are instituted

against me". PW 2 has further admitted in the cross examination

that it transpired during the investigation that the accused had

indeed visited police station on 23.9.1997 to lodge report against

the deceased. The possibility that the accused did not wish to

maintain the deceased, if at all, prosecution version is to be

accepted, due to some issue or differences with PW 1 is a real

possibility. I am not persuaded to hold that the evidence of PW 1

takes the case of the prosecution any further in proving offence

under section 498-A and 306 of IPC.

9 In so far as the conviction of the accused under

section 306 of IPC is concerned, there is absolutely no evidence on

record to suggest that the accused did any overt act with the

intention of driving the deceased to take the extreme step. Mens-

rea is not even alleged much less proved. It is true that in the

dying declaration, the deceased states that when she told the

accused that she will commit suicide, the accused did not object.

However, this version is not sufficient to record a finding that the

accused instigated the deceased to commit suicide or that the

accused must be attributed the requisite knowledge that a woman

of ordinary senses and sensitivity would in every probability be

driven to commit suicide. The scope and ambit of section 306 of

IPC is articulated by the Hon'ble Supreme Court in M. Mohan Vs.

State, 2011 All MR (Cri.) 1659 (S.C.) thus:-

"43. In State of West Bengal v. Orilal Jaiswal & Another (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears 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 of abetting the offence of suicide should be found guilty".

"44. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 2009 (16) SCC 605, had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self- esteem and self-respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances".

"45. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a

thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained".

"46. The intention of the Legislature and the ratio of the cases decided by this court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide".

10 The evidence on record is grossly insufficient to

establish the offence under section 306 of IPC beyond reasonable

doubt.

The judgment impugned is set aside.

The accused is acquitted of offence punishable under

section 306 and 498-A of IPC.

Fine paid by the accused, if any, be refunded.

The appeal is allowed.

Counsel's fees fixed at Rs. 5000/-.

JUDGE

R.S.Belkhede