Raju Shankarrao Khandar vs The State Of Mah.Thr.Pso Amravati
2018 Latest Caselaw 1042 Bom

 appeal159of2004.odt                       1



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

                      CRIMINAL APPEAL  NO.159 O
                                                F 2004
                                                      

          Raju s/o Shankarrao Khandar,
          Aged about 27 years,
          All resident of Bhambora, Tq. Tiosa,
          District - Amravati.
                                                             ....... APPELLANT

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

          The State of Maharashtra,
          through its Police Station Officer,
          Police Station : Dharni, Tq. Dharni,
          District- Amravati.
                                                             ....... RESPONDENT

 -------------------------------------------------------------------------------------------
          Shri N.R. Saboo, Advocate for Appellant.
          Shri V.P. Maldhure, APP for Respondent-State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO , J.

          DATE:                th
                            29    JANUARY

                                             8    . 


 ORAL JUDGMENT


 1]               The   challenge   is   to   the   judgment   and   order   dated 

07-02-2004 rendered by the 1st Ad-hoc Additional Sessions Judge,

Amravati in Sessions Trial 782/1997, by and under which, the

appellant is convicted for offence punishable under section 498-A

of Indian Penal Code ("IPC" for short) and is sentenced to suffer

rigorous imprisonment for two years and to payment of fine of

Rs.1,000/-. The appellant is however, acquitted of offence

punishable under section 306 of IPC. Smt. Shantabai and

Smt. Malu w/o Sureshrao Thakare, the mother and sister of the

accused who faced trial alongwith accused, are acquitted of both

the offences.

2] Heard Shri N.R. Saboo, the learned Counsel for the

appellant and Shri V.P. Maldhure, the learned Additional Public

Prosecutor for the respondent-State.

3] Shri N.R. Saboo, learned counsel for the accused

submits that the judgment and order impugned rests on

inadmissible evidence and is liable to be set aside on this short

ground. The submission is, that the learned Sessions Judge having

recorded a finding, relying on dying declaration (Exhibit-55),

which dying-declaration was suppressed by the prosecution, that

the death of Vandana is accidental and not suicidal, the verbal and

written statements of the deceased Vandana were not admissible

under Section 32 (1) of the Indian Evidence Act, qua the offence

punishable under section 498-A of IPC, since neither the cause of

death nor the circumstances of the transactions leading to the

death, was in issue. Shri N.R. Saboo, learned counsel has placed

reliance on the following observations of the Apex Court in

Kantilal Martaji Pandor V.s State of Gujarat, (2013) 8 SCC 781

to buttress the submission that the entire evidence on which the

conviction is founded, is inadmissible.

"17. The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant has starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26-03-1992 written by the deceased to the police station. The letter written by the deceased on 26-03-1992 could be relevant only under Section 32(1) of the Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. The High Court in the present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306 IPC. As the cause of the death of the deceased is no more in question in the present case, the statements made by the deceased in the letter dated 26-03-1992 to the police station cannot be taken to be proof of cruel acts committed by the appellant for the purpose of holding him guilty under Section 498-A IPC.

18. For taking this view, we are supported by the decision of this Court in Inderpal v. State of M.P. In this case, Inderpal was charged and tried for the offence under Section 306 IPC, and convicted by the trial court for the said offence of abetment of suicide.

In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498-A IPC. This finding of the High Court was based on the evidence of the father, mother, sister and another relative of the deceased who deposed on the basis of inter alia the two letters (Exts. P-7 and P-8) written by the deceased Damyanti that Inderpal, her husband, had subjected her to beating. This Court found that apart from the statement attributed to the deceased, none of the witnesses had spoken of anything which they had seen directly and the question that this Court had to decide was whether the statement attributed to the deceased could be used as evidence including the contents of Exts.P-7 and P-8 and this Court held that the contents of Exts. P-7 and P-8 written by the deceased could not be treated as proof of the acts of cruelty by Inderpal for the purpose of offence under Section 498-A IPC. The reasons given by this Court in para 7 of the judgment as reported in SCC are as follows: (Inderpal case, SCC p.739)

"7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Ext. P-7 or Ext. P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are

dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

4] Shri V. P. Maldhure, the learned Additional Public

Prosecutor supports the judgment and order impugned. The

submission is, that the evidence on record is cogent and reliable

and the prosecution has proved beyond reasonable doubt that the

accused subjected the deceased Vandana to cruelty within the

meaning of Explanation (a) of Section 498-A of IPC.

The evidence of the relatives apart, P.W. 9 Anant Dayaramji

Khandar, the Police Patil of the village, has deposed that when

Vandana was taken to the hospital in auto-rickshaw, he

accompanied her and Vandana disclosed that she was ill-treated.

5] The learned Sessions Judge has relied on

dying-declaration (Exhibit-55) which was recorded by the

Executive Magistrate in the hospital, and which dying-declaration

absolves the accused of any blame. The dying-declaration

Exhibit-55 recites that Vandana suffered accidental burns. The

dying-declaration (Exhibit-55) was suppressed by the prosecution.

However, having recorded a finding that the death was accidental,

the learned Sessions Judge, has convicted the accused relying on

the letters written by Vandana to her brother and the disclosures

made by Vandana to her family members which speak of the

accused abusing and assaulting Vandana under the influence of

liquor. One incident, which is a common thread in the testimonies

of the relatives is that of the accused throwing hot dal on the

person of Vandana.

6] The prosecution has examined P.W. 4 Narendra

Champatroa Ingale, the younger brother of the deceased, P.W. 5

Ganesh Champatrao Ingale, the elder brother of the deceased, who

lodged report dated 29-12-1996 (Exhibit-44), P.W. 6 Rajendra

Champatrao Ingale, the elder brother of the deceased, P.W. 7

Sou. Sunita, the wife of Narendra, who did not support the

prosecution, was declared hostile and cross-examined by the

learned A.P.P., P.W. 8 Smt. Panchafulabai Champatrao Ingale,

mother of the deceased, P.W. 9 Anant Dayaramji Khandar, the

Police Patil who is examined to prove the oral dying-declaration

made by Vandana when she was taken to the hospital, P.W. 10

Sudhir Champatrao Ingale, the brother of the deceased, P.W. 11,

the brother-in-law of the deceased and P.W. 12 Sou. Ranjana w/o

Dnyaneshwar Kale, the elder sister of the deceased, to prove that

the deceased was subjected to cruelty.

7] Concededly, the deceased Vandana and the accused

entered into matrimonial alliance on 5-6-1992 and the death

occurred on 27-12-1996, within 7 years of the marriage. I have

given my anxious consideration to the evidence on record, and

having done so, I am inclined to agree with the submission of the

learned counsel for the accused Shri N.R. Saboo that the

conviction is based entirely on in-admissible evidence. The

ill-treatment or harassment is not witnessed by any of the

prosecution witnesses. The evidence of the prosecution witnesses

is on the basis of what is narrated to them by the deceased

Vandana. The prosecution also relies of two letters Exhibit-45 and

Exhibit-47 addressed by the deceased Vandana to her elder brother

Ganesh. It is trite law, that the verbal or written statements of

Vandana would not be admissible in evidence under Section 32 (1)

of the Indian Evidence Act since neither the cause of death nor the

circumstances of the transactions leading to death, was in issue.

The learned Sessions Judge having recorded a finding that the

death was accidental and having acquitted the accused of offence

punishable under section 306 of the IPC, could not have relied

upon the verbal and written statements of the deceased to convict

the accused under section 498-A of the IPC.

8] The judgment and order of conviction is

unsustainable and is set aside.

9] The bail bond of the accused shall stand discharged

and the fine paid by the accused, if any, shall be refunded.

  10]              The appeal is allowed.



                                                JUDGE


RKN