2007 ALL MR (Cri) 762
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
A.V. MOHTA, J.
Sunil S/O. Ram Sapkal & Anr.Vs.State Of Maharashtra
Criminal Revision Application No.356 of 1999
28th July, 2006
Petitioner Counsel: Shri. S. C. BORA,Shri. S. S. BORA , Shri. GANGAKHEDKAR
Respondent Counsel: Smt. R. D. REDDY
Penal Code (1860), Ss.498A, 304B - Evidence Act (1872), S.113-B - Death of wife - Presumption u/s.113-B of Evidence Act - The case of presumption would result if the prosecution proves at least material and trustworthy evidence to support the basic case and not otherwise. (Para 18)
JUDGMENT:- The petitioners - accused 1 and 2, were charged and tried for offences punishable under sections 302, 306, 304-B, 498-A read with section 34 of the Indian Penal Code (IPC) along with three other accused in Session Case No.170 of 1995 by the Additional Sessions Judge, Jalna. However, after considering the material placed on the record, the petitioners have been convicted only for an offence punishable under section 498-A read with section 34 of the IPC and sentenced to suffer rigorous imprisonment for two months and to pay a fine of Rs.500/- each, in default, to suffer further rigorous imprisonment for one month. All other accused have been acquitted of the said charges. Therefore, this revision application.
2. The prosecution proceeded on the facts that accused No.1 Sunil married with the deceased Sunita on 19-05-1994. The deceased was treated well by her in-laws which include accused no.2 - father-in-law, accused No.3-Manubai, mother-in-law, accused No.4 Balia, brother of the husband, and accused No.5 Anil @ Shrikrishan, brother of the husband, accused No.1 at Jalna. Initially all were residing at Tebhurni, Taluka and District Jalna. However, subsequently they settled at Jalna. As alleged by the complainant - PW-1 Kashiram, all the family members started harassing the deceased after three months of the initial days of her marriage. The harassments were only to the extent of less dowry, not providing food, beating, taunting and insisting for bringing 5000 rupees from the parents. The complainant referred to various other instances as to how the deceased informed about the ill-treatment and harassment to them and even also to some of the relatives. The reference was also made about some altercations between the two families. The basic complaint, on the above background, on 18-18-1995 the deceased expired. The complainant visited Tembhurni along with five other persons and found the dead body of the deceased at the matrimonial house. On enquiry it was informed that she died on 18-8-1995 at 3.00 p.m. Taking this as a foundation the complainant lodged the First Information Report (FIR) on 19-8-1995 at 11.45 p.m. in the Police Station Tembhurni. Based on the same, the crime was registered under sections 306, 498-A read with Section 34 of the IPC by PW-5 Uttamgiri.
3. The investigating agency proceeded and the accused were charge-sheeted. During the trial the Sessions Court framed charge under sections 498-A, 306, 304-B and 302 read with section 34 of the IPC. All the accused denied the charges and claimed to be tried. Their defence was of total denial and further that the deceased was suffering from the continuous illness since beginning and; was on treatment from time to time; she had less haemoglobin in the blood. Her health was deteriorating day to day. On the date of the incident she was taken to the hospital at Jalna for the treatment. While getting down from ST Bus, the deceased felled on the ground and died all of a sudden. The death was neither homicidal nor suicidal but her death was natural.
4. The prosecution examined five witnesses. PW-1 Kashiram - complainant is the father of the deceased. PW-2 is Dr. Subhash, who conducted autopsy on the dead body. PW-3 - Kamalbai is the mother of the deceased. PW-4 - Pandurang is the uncle of the deceased while PW-5 Uttamgiri is the Investigating Officer (IO).
5. The various letters and other necessary documents were placed on record. The Additional Sessions Judge after considering the material placed on record held that the prosecution proved that accused No.1 and accused No.2 subjected the deceased to cruelty in furtherance of their common intention on or before 18-8-1995, in order to meet the unlawful demand of 5000 rupees. The charges of abetment to commit suicide by putting her in consistent harassment and torture and/or ill-treatment and/or dowry death were negatived. The charge of murder of the deceased was also negatived. The Sessions Judge thereby held accused 1 and 2 (husband and father-in-law) guilty of the offence punishable under section 498-A read with section 34 of the Indian Penal Code and sentenced them as mentioned above.
6. Heard learned counsel appearing for the petitioners and the learned Additional Public Prosecutor for the State. After scanning the whole record with the assistance of the respective Advocates and after going through the reasoning given by the Sessions Judge I am inclined to interfere with the order of conviction passed by the Sessions Judge on the following facts and reasoning.
8. On 19-5-1994 the deceased married with accused No.1. As per the complaint, the in-laws started demanding 5000 rupees after three months of the marriage. They started harassing her for the said demand. The deceased was continuously ill and therefore she was not keeping well after 3 to 4 months of the marriage. From 11-09-1994 to 13-09-1994 the deceased was examined by one Dr. Karwa. She went to her parents house from 16-9-1994 to 16-11-1994. Thereafter, for about more than five months i.e. from 17-12-1994 to 21-5-1995 the deceased stayed with her parents. During the period from 13th December, 1994 to 15th December, 1994 she was admitted in the Government Hospital at Khamgaon. The complainant - father wrote a letter dated 8-1-1995 (Exh.26) to the accused without referring to any kind of the demand. On 22nd May, 1995 the accused brought the deceased Sunita back to her matrimonial house. As per PW-1 Kashiram himself, they did not visit her thereafter. Since this date she was residing with her husband separately at Tembhurni and visiting Jalna for her treatment regularly. Another letter Exh.25 dated 11-6-1995 was written without referring to any demand in question. There was a reference about some discussion between the families. But there was no serious complaint of any kind against any of the accused. As the father of the complainant was ill. PW-1 Kashiram requested the accused - husband to send the deceased at the parties house.
9. The correspondences exchanges by Kashiram as well as accused No.1 shows that deceased was living separately from other accused. The deceased, as per the complainant PW-1, visited after the death of his father, on the 10th Day. That was some time during months of June to July. During all this period, even as per the evidence of the complainant, the allegations specifically were made about consistent harassment immediately after third month of the marriage about beating, ill-treatment and even of demand. On 18-8-1995 while going from Tembhurni to Jalna the deceased collapsed at ST Stand Jalna and because of that fall, the deceased died on the spot. Her dead body was brought at Tembhurni. PW-4 has informed to PW-1. They rushed at Tembhurni and found the dead body of the deceased. Kashiram without verifying the reason of the death of the deceased he lodged the complaint on suspicion against all the relatives, including accused No.1 husband.
10. As we are concerned with the offence under section 498-A read with section 34 of the IPC the facet of Section 113-A of the Indian Evidence Act also needs to be considered. As contended by the learned Additional Public Prosecutor, presumption lies against the accused unless rebutted. In the facts and circumstances of the case, the accused need to rebut the same by bringing on record positive material and not otherwise. Strong reliance has been placed by the learned A.P.P. on a judgment of the Apex Court in Kaliyaperumal Vs. State of Tamil Nadu reported in 2004 SCC (Cri) 1417 in support of her submission in favour of the impugned judgment of the conviction. The facts are totally distinct and distinguishable. Admittedly the order of conviction is only under section 498-A read with section 34 of the Indian Penal Code against accused Nos.1 and 2. All the accused have been acquitted under sections 302, 306, 304-B read with section 34 of the IPC by the same reasoning. There is no appeal preferred by the State against the said order of acquittal. Therefore, the ingredients as contemplated revolving around Section 498-A or Section 304-B or Section 306 of the IPC, for want of material on record, are absent.
11. Section 498-A of the IPC for the purpose of the present matter needs a foundation of a cruelty which includes mental as well as physical cruelty by the husband or the relatives of the husband. It does not mean that merely filing of a complaint itself is sufficient to convict the accused based on the unsupportive and unproved allegations, taking foundation of the presumption as contemplated under the Evidence Act. The provisions and ingredients of Sections 304-B, 306 and 498-A of the IPC cannot be held to be mutually inclusive. All the provisions have distinct characteristics and ingredients. The offences are also different. Though the aspect of cruelty is common and essential to all these sections. The learned Sessions Judge having acquitted all the accused under sections 302, 304-B and 306 of the IPC it is necessary to deal with the aspect of cruelty afresh as except accused 1 and 2 i.e. husband and father-in-law, all other accused though named and charged have been acquitted even under section 498-A of the IPC.
12. It is true that when we talk about the cruelty in reference to Section 498-A of the IPC read with section 113-B of the Evidence Act, the past events of cruelty including mental and physical in cases where death of a woman within 7 years of marriage takes place, one needs to consider the same for the purpose of consideration to connect the accused with the crime. For that, we have to reassess the factual scenario in the fact and circumstances of the case. The factual background, as reflected above, is very essential to consider the submissions as raised by the learned counsel appearing for the petitioners to acquit them of all the charges.
13. There are three important witnesses out of which PW-1 Kashiram is the father and PW-3 Kamalbai is the mother of the deceased. Another witness is PW-4 Pandurang, an uncle of the deceased. Merely because they are related and interested witnesses that itself cannot be a reason to discard their evidence. But what is important to see is the corroboration and trustworthiness of these witnesses. PW-1 the complainant in his evidence has stated that the in-laws of the deceased started demanding Rs.5,000/- after 12 months of the marriage. He has further stated that his daughter used to inform that accused 2 and 3 used to ill-treat her. He has further stated that the ill-treatment means "she was not provided with food at proper time and used to persistently taunting her". He has further stated that accused No.1 told him that accused 2 and 3 at one time had beaten the deceased Sunita. He has further stated that accused 2 and 3 came to take her and demanded 5000 rupees but he was unable to pay the same. However after long persuasion they took the deceased with them back to the matrimonial house which was because of mediation of the cousin brother Sukhdeo and Police Patil. But said Sukhdeo and the Police Patil were not examined by the prosecution. After the incident when he visited and found the dead body of Sunita, by raising doubts and suspicion he lodged the complaint. Therefore one thing is very clear that even as per PW-1 Kashiram, accused No.1 husband informed him about the torture or ill-treatment to the deceased. There is not a single whisper against husband - accused No.1. All the allegations are only against accused 2 and 3.
14. In the cross-examination, as recorded above, he has admitted that the deceased was with him as she was ill from 16-09-1994 to 16-11-1994 and thereafter from 17-12-2004 to 21-5-1995. She was hospitalized in the Government Hospital at Khamgaon from 13-12-1994 to 15-12-1994. He has further admitted that since 22nd May, 1995, the deceased was living separately with accused No.1 that is away from all the in-laws at Tembhurni. Thereafter they never visited her.
15. As referred to and relied upon by the prosecution on Exhibits 23 to 26, except some controversies or discussion about the relations between two families, there were no specific allegations raised against all the accused and specifically against accused No.1 husband. Accused No.1 used to take her to Jalna for treatment from Tembhurni. The letters though are on record are not sufficient to consider the case of cruelty as sought to be alleged and complained of by the complainant in the complaint. The reason revolving around the contents of those letters are not sufficient to accept the case of the prosecution of cruelty. Even, in his evidence Kashiram made allegations only against accused 2 and 3 of teasing the deceased. He has further stated about the ill-treatment, 10 days before her death as informed by his son-in-law (accused No.1).
16. The fact that, the deceased was living separately and along with her husband since 22nd May, 1995 just cannot be overlooked. The allegations even against accused 2 and 3 of ill-treatment even if living separately from the in laws remained unsupported. It is difficulty to accept for want of the material on record. The important facet here is that Kashiram in his complaint has mentioned that accused started ill-treating the deceased immediately after three months but in his own evidence the reference of ill-treatment was mentioned only after one year from the date of marriage. The basic complaint needs support of the facts though minor discrepancies or omissions are not much important while passing the order for such offences.
17. In her evidence PW-3 Kamalbai stated that all the accused used to demand 5000 rupees. She further stated that the husband used to beat the deceased and other in laws used to keep her hungry. PW-2 Kashiram, as recorded, did not depose that accused 1 used to beat her and was found harassed or ill treated her at any point of time. The allegation against all accused was that they used to keep her hungry. The aspect of her illness and medical treatment during all this period is also relevant. There is no such case even stated by Kashiram in his evidence. She has further stated after 20 days from last beating, the deceased expired. Kashiram stated in the cross-examination that accused No.1 informed him about ill-treatment before 10 days of her death by the other in laws. The fact that the deceased was staying with the husband away from the in-laws since 22-5-1995 is also relevant which further collapse the evidence of the mother also.
18. It is not because of some contradictions or inconsistencies that we need to overlook the statements of evidence of the related witnesses but in the present case the basic facts and the basic allegations against the accused itself are very short to support the prosecution case. These contradictory statements between the mother and the father of the deceased are itself self destructive. There is no consistency and/or corroboration in their basic statements and the allegations as raised and as made by the complainant and the mother Kamlabai. She specifically admitted in her cross-examination that they used to live separately prior to 2 months of the death. She further admitted about her consistent illness. She has further stated that she did not tell about the injuries at the thigh to anybody because of sorrowness. Except this there is no corroborative material to support the complainant Kashiram. Even in the testimony of Kamalbai, there is no reference made, as complained of by Kashiram about the alleged death caused by accused 2 and 3. All other material aspects as reflected in the complaint as well as in the evidence of Kashiram revolving around Sections 302, 305-B, 306, 498-A of the IPC are absent. The case of presumption would come if the prosecution proves at least material and trustworthy evidence to support the basic case and not otherwise.
19. PW-4 - Pandurang, uncle of the deceased, deposed a third story in his testimony saying that the deceased had informed him just after one month after the marriage about accused 2 demanding 5000 rupees. There is no such case made out even by the father and mother of the deceased. There is a consistency in one facet that at least for first three months there was no problem of any kind to the deceased. There are no allegations even made by these witnesses against the accused and specifically accused 1. In the cross-examination, though not emphasised even by the mother of the deceased, he deposed that her niece, the deceased, was murdered by the accused. There is no specific reference made that who actually committed murder. He further stated that Sunita was not in a position to commit suicide and he did not tell to the police about some foul play due to injuries found on the person of the deceased. The facet that this witness, as mentioned, was facing a murder trial of his wife is also relevant. The learned Advocate appearing for the petitioners submitted that testimony of such witness even otherwise needs to be scrutinised very carefully.
20. The facet of medical officer's evidence, as reflected rightly by the Sessions Judge, further supports the submissions as raised by the learned counsel appearing for the petitioners. In fact, this reason itself destroys the case of the prosecution even for an offence punishable under section 498-A of the IPC. Once the complaint was lodged and the offences were registered under sections 302, 304-B, 306 and 498-A, IPC were framed, no doubt that the prosecution proceeded accordingly. In the present case, the medical certificate and other material placed on record clearly show that the deceased was ill continuously since her marriage. Except few months, throughout she was ill and was under treatment. Her health was deteriorating day by day. She was hospitalised also. He had less haemoglobin in the blood and because of fall, as certified, she died. Therefore, her death was neither homicidal nor suicidal but it was natural. Therefore having once held that the accused have not committed any offence of abetment or it was a case of dowry death and it was not a case of suicide from the same foundation, in the fact and circumstances of the case, as referred to above, I see there is no case made out by the prosecution to connect the accused - petitioners with the crime. The Apex Court in T. Aruntperunjothi Vs. State, 2006 AIR SCW 3241, after considering the provisions of Section 304-B of the IPC read with Section 113-B of the Evidence Act, on merits, acquitted the accused as the prosecution failed to establish the demand of dowry and harassment beyond all reasonable doubt.
21. All the other accused, except accused 1 and 2, even have been acquitted by the Sessions Judge on the basis of same evidence. If the case initially based on the harassment and/or cruelty as contemplated under section 498-A of the IPC against the husband and other relatives the conviction only against the husband and the father-in-law, is not justifiable for want of material itself. As reflected, there is no material against accused No.1 and, on the contrary, Kashiram, the complainant no where stated anything about any act of cruelty against accused 1. The material contradiction and omission in the evidence of this basic three witnesses also nowhere support the case of the prosecution against accused 1. In absence of any positive material or any connecting circumstances against accused 1 there is no case made out at all against accused 1.
22. Taking note of the evidence of all these three witnesses and considering the scheme of Section 498-A, IPC and the allegations as made against all the accused i.e. the husband and his relatives it is further unacceptable that accused 2, all the time and during all this period had harassed or ill-treated the deceased. Accused No.3, mother-in-law, has been already acquitted on the same evidence by the learned Sessions Judge. The fact that prior to 2 to 3 months or at least since 12-5-1995, the deceased living separately from her in-laws which include accused No.2. I see there is no reason to accept the prosecution case for want of material that accused 2 ill-treated or harassed her during this period also. There are correspondences on record in which Kashiram in fact had written letters addressed to the accused - husband without making any reference of any ill-treatment or harassment. There is nothing on record to suggest that it is only accused 2 who had demanded 5000 rupees and throughout insisting for the same and that resulted into the offences as alleged. The allegations of committing murder by accused 2 and 3 as complained of, if collapses it is difficult to accept the story of the prosecution or even of the complainant that a case of cruelty has been made out. Accused 2 in this back ground considering the totality of the evidence and material placed on record, according to me, also deserves acquittal.
23. In this background I am of the view that the prosecution has failed to prove that accused 1 and 2 with common intention subjected the deceased to cruelty on or before 18-8-1995 made unlawful demand of 5000 rupees.
24. Taking all this into account, the Criminal Revision Application is allowed. The impugned judgment and order dated 28-6-1999 passed by the Additional Sessions Judge Jalna convicting the petitioners of an offence punishable under section 498-A read with section 34 of the Indian Penal Code and sentencing them to suffer R.I. for 2 months and to pay a fine of Rs.500/- each, in default, to suffer further R.I. for one month is quashed and set aside and the petitioners are acquitted of the offence for which they are tried and convicted. Fine amount, if paid, be refunded to the petitioners. Their bail bonds stand cancelled.