The State Of Maharashtra vs Narsayya Vyankatesham Dusa And ...
2022 Latest Caselaw 497 Bom

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                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                                           CRIMINAL APPEAL NO.1081 OF 2007

                        State of Maharashtra                                    ...Appellant

                                      Versus

                        1. Narsayya Vyankatesham Dusa
                           Age : 60 Years.
                           R/o Vyankatesh Dusa Building,
                           Markendyanagar, Padmanagar,
                           Bhiwandi.

                        2. Surekha Tirupati Tatipamula
                           Age : 24 Years,
                           R/o Ashirwadnagar,
                           Behind Shivsena Office,
                           Kamatghar, Bhiwandi.                                 ...Respondents
                                                                   ....
                        Mr. S. H. Yadav, APP for the Appellant - State.

                        Mr. Bhavin Jain i/by Mr. Ganesh Gole, Advocate for the
                        Respondents.

                                                CORAM      :         PRAKASH D. NAIK, J.

                                                DATE       :         14th JANUARY, 2022.


                        ORAL JUDGMENT :

1. The State of Maharashtra is the appellant in this

appeal. The appeal has been preferred by invoking Section

378(3) of Criminal Procedure Code (for short "Cr.P.C.")

challenging the judgment and order dated 4th January, 2006

passed by the IIIrd Additional Sessions Judge, Thane in

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Sessions Case No.458/2004 ordering acquittal of respondents

for the offences punishable under Sections 498(A) r/w

Section 34 of Indian Penal Code (for short "IPC") and Section

306 r/w Section 34 of IPC.

2. The case of the prosecution is as follows :

The deceased was married to the son of

respondent No.1 on 25th February, 2004. During the

marriage, the father of the deceased had presented gold

ornaments and it was agreed that Rs.50,000/- would be given

at the time of Diwali festival. The said terms were settled in

the presence of the community persons at the time of

settlement of marriage. After the marriage, the deceased

started residing with her husband and mother-in-law. The

sister-in-law though married, she used to stay with the

co-accused. Husband of the deceased was serving in power-

loom factory. There was no ill treatment to the deceased at

the hands of her husband. He was not impleaded as accused.

It is alleged that the mother-in-law and sister-in-law were

harassing the deceased. They were insisting that the

deceased should bring amount of Rs.50,000/- from her

parents. They also demanded interest on the said amount.

The father of the deceased gave some amount on one or two

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occasions for household expenses to the husband of deceased.

On 6th October, 2004, the deceased poured kerosene on her

person and set herself on fire. She was taken to hospital. On

account of burn injuries, she died in the hospital. First

Information Report (for short 'FIR') was registered under

Section 498(A) and 306 r/w Section 34 of IPC by the father of

the deceased. On completing investigation charge-sheet was

filed.

3. Charge was framed against the accused for

offences under Section 498(A) r/w Section 34 of IPC and

Section 306 r/w Section 34 of IPC vide order dated 10 th

August, 2005. The evidence of witnesses was recorded. The

prosecution has examined 5 witnesses. PW-1 Laxman

Anjayya Maruti is the father of deceased. PW-2 Shrinivas

Bujeri Upadhyay is the neighbour. PW-3 - Dasi Ambalal

Guchhayya is the Special Executive Officer. He recorded dying

declaration of the deceased. PW-4 - Balkrishna Kashinath

Patil was the Police Sub Inspector. He is the Investigating

Officer. PW-5 - Shankar Tatoba Patil is the Police Sub

Inspector. He had conducted investigation.

4. The statements of the accused were recorded

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under Section 313 of Cr.P.C. Both the accused pleaded not

guilty.

5. Vide judgment and order dated 4 th January, 2006,

the learned IIIrd Additional Sessions Judge, Thane acquitted

both the accused for offences under Sections 498(A) and 306

r/w Section 34 of IPC.

6. Learned APP submitted that the incident of

suicide had occurred within short span from the date of

marriage. The marriage was performed on 25 th February,

2004 and the incident of suicide had occurred on 6 th October,

2004. The presumption under Section 113(A) of the Evidence

Act can be invoked in the present case. It was not rebutted by

the defence. The evidence of PW-1 establishes that the

deceased was subjected to ill treatment, harassment,

resulting in cruelty. There was demand of money from the

deceased. There was continuous harassment and on account

of frustration she had committed suicide. There was

sufficient evidence before the trial Court to convict the

accused for offences under Sections 498(A) and 306 of IPC.

The version of the witnesses and the documentary evidence

on record supported the case of the prosecution. The

statement of the deceased in the form of dying declaration

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was recorded. The deceased had stated that, on account of

harassment by the accused, she has committed suicide.

Accused No.1 is the mother-in-law and accused No.2 is sister-

in-law of the deceased. There is no reason to doubt the dying

declaration of the deceased. The defence has not succeeded in

demolishing the prosecution case. The trial Court has failed

to appreciate the oral and documentary evidence on record in

proper perspective. The judgment of acquittal is perverse.

Hence, the impugned judgment is required to be set aside and

the respondent accused be convicted for the said offences.

7. Learned Advocate representing the respondent

submitted that there is no reason to set aside the order of

acquittal. The trial Court while appreciating the evidence has

given finding that the prosecution has not established its

case. The offences under Sections 498(A) and 306 of IPC

were not proved. Merely on the basis of the presumption

under Section 113-A of the Evidence Act, the accused could

not be convicted. The basic ingredients to constitute the

cruelty and abetment to commit suicide were lacking. The

order of acquittal could be set aside only in exceptional

circumstances. The evidence of the witnesses is short of

constituting for offences under Sections 498(A) and 306 of

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IPC. The complainant has improved his version. His evidence

suffers from contradictions and omissions. The dying

declaration does not spell out that there was demand of

dowry by the accused from the deceased or that harassment

was not fulfilling demand of dowry. Except stating that there

was harassment, the dying declaration did not mention

anything further.

8. In support of submissions, learned counsel for the

respondents has relied upon the decisions of the Supreme

Court in the case of Ramesh Kumar V/s. State of

Chhattisgarh1, and Heera Lal and Anr. V/s. State of Rajasthan

delivered on 24th April, 2017 in Criminal Appeal No. 790 of

2017.

9. I have perused the oral and documentary

evidence adduced before the trial Court. The trial Court has

considered the evidence and gave findings of acquittal. The

impugned judgment and order of acquittal is based on

appreciation of evidence and cogent reasons are assigned by

the Court for acquitting the accused. The trial Court had

observed that, as per the evidence of PW-1 there was ill

treatment to the deceased by the accused for bringing

1 AIR (2001) SC 3837

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interest on the amount of Rs.50,000/- which he assured to

pay at the time of Diwali. PW-1 also stated that he had

presented the gold ornaments and household articles in the

marriage and agreed to pay Rs.50,000/- after the marriage.

His evidence does not disclose that there was any demand of

money either from the mother-in-law or the sister-in-law or

the husband of the deceased. The Court observed that the

witnesses have exaggerated the story of prosecution. The

evidence of PW-3 indicates that, he had recorded the

statement of the deceased which has been treated as dying

declaration. Cause of harassment is not mentioned either in

the dying declaration or evidence of Special Executive Officer

(PW-3). The FIR was registered vide Exhibit-22, which was

proved through PW-5. It was treated as dying declaration.

The Court noted that the statement of the victim indicate that

quarrel used to take place on domestic grounds between the

deceased and the accused. The statement does not refer to

demand of money from either accused or that there was

harassment to the deceased for complying demand of money.

Thus, the trial Court has noted the version of witnesses and

the contents of dying declaration and arrived at the

conclusion that offences are not made out.

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10. The accused Nos.1 and 2 are mother-in-law and

sister-in-law of the deceased. The husband was exonerated.

In the dying declaration the victim has stated that there was

no harassment from her husband. PW-1 has deposed that he

has incurred marriage expenses and purchased gold

ornaments. Household articles were provided during the

marriage. It was decided that amount of Rs.50,000/- will be

paid to the husband of deceased at the time of Diwali. The

deceased was ill treated by the accused. There was demand

of kerosene and rice from the parents of the deceased. PW-1

paid Rs.500/- on one occasion and Rs.600/- on another

occasion for household expenses. The accused were

demanding that deceased should bring interest on the

amount of Rs.50,000/-from PW-1 and that the deceased was

beaten by them. This fact was disclosed by his daughter to

him. He had agreed to pay the amount as per agreement.

The deceased had suffered from typhoid and her husband did

not take her to hospital. PW-1 took her to his house. There

was quarrel between the accused and the deceased.

Thereafter, both the accused poured kerosene on the person

of the victim, they closed the door and went outside. The

incident took place on 6th October, 2004. PW-1 came to know

about the incident from the public. He visited the house of

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daughter. She was taken to hospital. He went to hospital and

met his daughter. She was burnt. He spoke to her. His

daughter disclosed to him that both the accused had

assaulted and set her on fire by pouring kerosene and closed

the house. She also disclosed that both the accused had

assaulted her for bringing more amount from parents. He

took the deceased to IGM hospital Bhiwandi. Her statement

was recorded by Police. She died due to burn injuries. From

the examination-in-chief of PW-1 it can be seen that, his

version is contrary to dying declaration of the deceased.

According to him, the accused poured kerosene on the

deceased and set her on fire. He further submitted that

deceased had stated to him that the accused had set her on

fire by pouring kerosene. The trial Court has rightly observed

that this witness is exaggerating the prosecution case. In the

cross examination he stated that his statement was recorded

by Police, 3 days after the incident. There are omissions in

his version. The deposition that he had given ornaments to

the deceased at the time of marriage worth Rs.35,000/- was

not reflected in his statement. He stated that ornaments

were presented by him to the deceased at the time of

marriage as per his free will. The payment of Rs.50,000/-

was made as per his free will. The fact that the amount of

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Rs.50,000/- was to be paid to the accused is not appearing in

his statement. His version that the accused were insisting the

deceased to bring interest on the amount of Rs.50,000/- is

not appearing in his statement. He used to visit his daughter

frequently. He had disclosed to the Police that his daughter

had suffered from typhoid and he took her for treatment

however, the said fact is not appearing in his statement. The

fact that the accused had beaten his daughter for demanding

more amount from him, is not reflected in his statement. He

had disclosed to the police that both the accused had poured

kerosene on the person of the deceased and set her on fire but

the said fact is not appearing in his statement. He admitted

that the husband of the deceased and mother-in-law (accused

No.1) were present at the hospital. From the evidence it is

apparent that it suffers from serious omissions and

contradictions.

11. PW-2 - Shrinivas Upadhyay has deposed that, he

do not know about relationship between the deceased, her

husband and her in laws. He received information that the

deceased died by burning and pouring kerosene oil on her

person. The victim was taken to hospital by him. After

admitting the deceased to hospital he came out. Nothing had

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happened in his presence. This witness was declared hostile

and cross examined by the prosecution. He had denied the

suggestions put to him at the instance of the prosecution. In

the cross examination by defence Advocate he stated that

accused No.2 is the sister-in-law of the deceased. She is

married and residing at Kamatghar, Bhiwandi.

12. PW-3 - Dasi Ambalal Guchhayya is the Special

Executive Officer. According to him, the victim was admitted

to hospital. He reached the hospital. Doctor permitted him to

record dying declaration of the patient. He had talk with the

patient. She disclosed that because of harassment in the

family, she burnt herself. She gave name of sister-in-law and

mother-in-law for the harassment. She also disclosed that

there was no ill treatment to her from the husband. The said

statement in the form of dying declaration was adduced in

evidence and marked as Exhibit-15. In the cross examination

he stated that Exhibit-15 does not bear the signature of the

Medical Officer. The relatives of the patient were present at

the ground floor, when he recorded the dying declaration

word boy and doctor were present. He cannot tell the name of

the doctor. He did not make inquiry regarding the treatment

given to the patient. The dying declaration made to PW-1

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runs counter to this dying declaration. The dying declaration

mentions that on account of harassment by mother-in-law

and sister-in-law she has burnt herself and there is no

harassment from her husband. There is no reference to any

demand made by the accused or harassment being caused for

not fulfilling demand. The trial Court has rightly observed

that assuming the harassment as mentioned in the dying

declaration is true, it is not sufficient to come to the

conclusion that there was cruelty or abetment to commit

suicide.

13. PW-4 is the Investigating Officer. He was attached

to Bhiwandi Town Police Station as Police Sub Inspector. He

stated that offence was registered vide C.R. No.217 of 2004

under Section 498(A) and 306 r/w Section 34 of IPC.

Investigation was handed over to him. Dying declaration

statement of deceased was recorded vide Exhibit-15 by PW-3.

Inquest panchanama was recorded. Spot panchanama was

recorded. Post mortem was conducted. On completing

investigation charge-sheet was filed. In the cross

examination he stated that statement of Shravani (deceased)

was recorded in Civil Hospital Thane, at 11.30 p.m. It was

transpired in the investigation that the accused No.2 is

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married and she resides at her matrimonial home at

Kamatghar. The statement of the father of the deceased was

recorded on 7th October, 2004. He did not disclose that value

of articles is Rs.35,000/- and that the payment of Rs.50,000/-

was made to the accused. He also did not disclose that the

accused were demanding interest over the amount of

Rs.50,000/- and there was ill treatment. He did not disclose

that his daughter was suffering from typhoid and he has

taken her to hospital. He did not disclose that after pouring

kerosene on the person of the deceased she was set on fire by

accused.

14. PW-5 was attached to Bhiwandi City Police Station

as P.S.I. He recorded statement of the deceased. According to

him, statement was recorded as per her narration. She

disclosed that domestic quarrel used to take place with

mother-in-law and sister-in-law and as she was fed up with

the quarrells, she poured kerosene on herself and set herself

ablaze. The complaint - dying declaration was marked as

Exhibit-22. The offences were registered. In the cross

examination he deposed that he did not make any inquiry

regarding treatment given to patient. The statement was

recorded in question and answer form. He called Special

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Executive Officer for recording statement of the patient.

15. I have also perused the statement of the deceased

recorded on 6th October, 2004 which was treated as FIR as

well as dying declaration. It bears the endorsement that the

patient is conscious and able to give statement. On perusal of

the said dying declaration it is apparent that the victim had

disclosed that there used be domestic quarrels between the

accused with the victim. Hence, on 6 th October, 2004 at about

7.30 p.m. while nobody was in the house she closed the door

of room and bolted it from inside and poured kerosene on her

person and set her on fire. Her husband was not at home. He

was at work place. Nobody had burnt her. She herself burnt

her.

16. In the light of the aforesaid evidence, the trial

Court has given findings that, there was no sufficient

evidence to come to the conclusion that there was cruelty to

victim resulting in instigation or abetment to commit suicide

by accused.

17. I do not find any reason to deviate from the

findings and the view expressed by the trial Court. The

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reasons assigned by the trial Court are in consonance with

the evidence on record.

18. In the case of Ramesh Kumar V/s. State of

Chhattisgarh (Supra), while interpreting Section 113-A of

Evidence Act, the Supreme Court has observed as follows :-

"13. This provision was introduced by Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in- law and incriminating evidence was usually available within the four-corners of the matrimonial home and hence was not available to any one outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113- A, it must be shown that (i) woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty.

On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. The Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall

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not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to 'all the other circumstances of the case'. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression - 'The other circumstances of the case' used in Section 113-A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase 'May presume' used in Section 113-A is defined in Section 4 of the Evidence Act, which says- 'whenever it is provided by this Act that Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.'"

19. In another decision relied upon by the learned

counsel for the respondents delivered in the case of Heera Lal

and Anr. V/s. State of Rajasthan (Supra), the apex Court in

Para 8 has observed as follows :-

" 8....... " No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in- laws to assist the victim to commit suicide. "

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20. In the light of the settled principles of law and

applying the same to the factual aspects of this matter, there

is no reason to set aside the judgment of acquittal. This

appeal must fail.

21. Hence, I pass the following order :

ORDER

Criminal Appeal No.1081 of 2007 is dismissed and

stands disposed of.

                                           (PRAKASH D. NAIK, J.)




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