2013 ALL MR (Cri) 507
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.C. CHAVAN, J.

Sambhaji Soma Rupnavar Vs. The State Of Maharashtra

Criminal Appeal No. 274 of 1996

7th December, 2012

Petitioner Counsel: Mr. NITIN DALVI i/b Mr. DILIP BODAKE
Respondent Counsel: Ms. ALPA T. JHAVERI

(A) Penal Code (1860), S.306 - Evidence Act (1872), Ss.3, 32 - Circumstances of transaction which led to commit suicide - Demand of land and allegations of cruelty in chit written by deceased - Chit was written almost one year and 8 months prior to the day deceased committed suicide - Held, chit had 'no proximate connection' to deceased committing suicide - Trial court wrongly held on the basis of chit that there was unlawful demand on the part of appellant which led to ill-treatment to deceased and which eventually made deceased to give her life. (Para 18)

(B) Penal Code (1860), Ss.498A, 306 - Evidence Act (1872), Ss.3, 32, 106 - Circumstances of transaction which led to commission of suicide - Demand of land and allegations of cruelty in chit - Till the chit was written, there seems to have been no incident of any ill-treatment which would constitute cruelty under Section 498A of Penal Code - Deceased-wife's resumption of cohabitation should lead to inference that previous misconduct, if any, on the part of appellant had been condoned - Allegations of demand of one acre of land and cruelty, wtitten in chit - Chit was written almost one year and 8 months prior to the day deceased committed suicide - Held, same had no proximate connection to deceased committing suicide - Quarrels between appellant-accused and deceased-wife were on account of her not cooking meals at proper time and other such reasons - Nothing to indicate that on the incidental day the appellant-accused had indulged in such conduct as would have provoked the deceased to commit suicide - Merely because appellant-accused was at home on the day of incident it would not imply that he was responsible for deceased taking her life - Conviction under S.498A and 306 of IPC set aside. (Paras 6, 18, 19)

(C) Evidence Act (1872), S.54 - Criminal P.C. (1973), S.198A - Previous bad character - In the trial of abetment to suicide of first wife, second wife deposed that accused-husband had tendency of ill-treating - No evidence as to good character of accused given, hence there is no occasion for the prosecution to tender any evidence on tendency of ill-treating wives - Such evidence of second wife cannot be considered. (Para 5)

Cases Cited:
Maulaali Yakub Jamadar & ors Vs. The State of Maharashtra, 2001 ALL MR (Cri) 317 =2000 Vol. 102 (3) Bom. L. R. 544 [Para 17]
Taruna alias Gautam Mukherjee Vs. State of West Bengal, 2001 Cri. L. J. 4937 [Para 17]
Radhakisan Kachru Khandagale & anr Vs. State of Maharashtra, 2011 ALL MR (Cri) 1413 =2011 Cri L.J. 2612 [Para 17]


JUDGMENT

JUDGMENT :- This appeal is directed against conviction of the appellant by the learned III Additional Sessions Judge, Kolhapur, for the offences under Sections 498A and 306 of the Indian Penal Code and sentence of rigorous imprisonment for three years with fine of Rs.5,000/- or in default rigorous imprisonment for one year, imposed upon the appellant, on each of the two counts, on conclusion of trial of Sessions Case No.71 of 1995, before him.

2. The facts which are material for deciding this appeal are as under:-

The victim was married to the appellant on 16.5.1979. She gave birth to a daughter on 20th May, 1980. A son, who was subsequently born on 1st March, 1982, died on 25th March, 1982 due to alleged neglect by not providing medical treatment on the part of appellant. In March, 1982, the appellant sent the victim to her parents house. He seems to have taken P. W. 1 Keshar as second wife in 1983, and also left Keshar in six months. Thereafter it appears that by mutual agreement dated 21st June, 1988, the victim came back to reside at the appellant's house. On 8th April, 1993, the victim allegedly wrote to her father that she should be given at least one acre of land, otherwise she was to lose her life. On 25th January, 1995 the victim had consumed poison endosulphan when the appellant was at his house. The appellant himself took the victim to hospital where the victim was pronounced dead. As per the notes of postmortem examination and the report of Forensic Laboratory, it is clear that the victim died as a result of poisoning i.e. due to consumption of endosulphan. Police registered offence on a report by victim's brother P. W. 8 Sudhakar on 3rd February, 1995. An A.D had already been registered. After completion of investigation, chargesheet was sent in the Court of learned Chief Judicial Magistrate, Kolhapur, who committed the case to the Court of Sessions at Kolhapur. The learned Additional Sessions Judge to whom the case was made over, charged the appellant of offences punishable under Sections 498A and 306 of the Indian Penal Code. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all 10 witnesses in its attempt to bring home the guilt of the appellant. After considering the prosecution evidence in the light of defence of denial of complicity in the death of the victim, the learned Judge convicted and sentenced the appellant as aforementioned. Aggrieved thereby the appellant is before this Court.

3. I have heard learned counsel for the appellant and the learned Additional Public Prosecutor for the State. With the help of both I have gone through the evidence on record.

4. The learned trial Judge seems to have relied on the evidence of P. W. 1 Keshar, the second wife whom the appellant is alleged to have brought in the year l983 and who left the appellant within six months. P. W. 1 Keshar and her father Shankar stated that since Keshar was illtreated, she left appellant's house. The learned Judge seems to have relied on this evidence to infer that the appellant had a tendency of illtreating wives.

5. The learned counsel for the appellant submitted that this evidence was thoroughly irrelevant in view of provisions of Section 54 of the Evidence Act. The learned counsel also referred to provisions of Section 198A of the Code of Criminal Procedure. He submitted that the Court was not required to look into the grievances of Keshar, in the case at hand. The learned Additional Public Prosecutor, submitted that the learned trial Judge, was justified in looking to the evidence of P. W. 1 Keshar and P. W. 2 Shankar because it would show a tendency of the appellant and could make it probable that the appellant would have treated the victim also likewise. First, since the treatment given to Keshar could not have been included in the chagesheet filed and was not part of the charge for which the appellant was being tried. The evidence of Keshar and Shankar was thoroughly irrelevant. Secondly, so long as the appellant did not give evidence of his good character, there would have been no occasion for the prosecution to tender any evidence about the appellant's past conduct. Therefore, the learned Judge, in my view, was not justified in looking into the evidence of P. W. 1 Keshar and P. W. 2 Shankar.

6. P. W. 3 Namedo is the victim's father and P. W. 8 Sudhakar is the victim's brother. Sudhakar had given report in respect of incident to the police. Both the father and brother stated about the illtreatment which the victim is supposed to have referred to in chit in April, 1992. The learned counsel for the appellant had several objections to the chit at Exh.19. One of his objections namely as to whom chit was addressed, deserve consideration. Both P. W. 3 Namdeo and P. W. 8 Sudhkar claimed that the chit was written to them. P. W. 4 victim's daughter, however, states that the chit was addressed by P.W. 3 Namdeo, as deceased used to call him "Bhau". In this chit the victim had asked her father to give her at least one acre of land and had added that otherwise her three children and she would be killed. She had stated that she was inflicting injustice upon father, but he should give her that one acre of land as alm. The learned Additional Judge had held on the basis of this chit that there was unlawful demand on the part of the appellant which led to illtreatment to the victim and which eventually made the victim to give her life.

7. Learned counsel for the appellant submitted that the chit is dated 8th April, 1993 i.e. almost one year and 8 months prior to the incident dated 25th January, 1995. He, therefore, submitted that it is not clear as to how this chit could be read to support the contention that illtreatment was continued till January, 1995 for failure to get one acre of land. P. W. 3 victim's father Namdeo had stated that the victim had come to his house one or two months prior to her demise. She had again reported that she was illtreated and beaten because of failure to get agricultural land. P. W. 3 stated that he had told the victim that he would give 1½ acre of land at time of partition amongst his sons. Thus, it is not that the land was not promised to be given. Therefore, ordinarily this may not have been the cause for illtreatment.

8. The learned trial Judge also seems to have relied on the previous proceeding between the parties, being case for grant of maintenance allowance under Section 125 of the Code of Criminal Procedure. This was filed by the victim and her daughter Manisha in the year 1985 in the court of Judicial Magistrate First Class, Indapur. The judgment in the case is at Exh.17. It shows that the learned Magistrate had awarded monthly maintenance at the rate of Rs.90/- for the victim and Rs.70/- for the victim's daughter P. W. 4 Manisha. In this judgment there is reference of the appellant beating, assaulting, abusing the victim. The learned APP submitted that this judgment would show that the appellant was in the habit of beating, abusing and illtreating the victim. The learned counsel for the appellant on the other hand submitted that all the grievances of the parties had come to an end by their entering into agreement dated 21st June, 1988 which is at Exh.18 and in which the victim had resumed cohabitation with the appellant. He submits that in the face of this agreement and resumption of cohabitation in 1988, it would be impermissible to rake up the old discord between husband and wife for the sake of drawing the inference that the victim was illtreated in a cruel manner or was being driven to commit suicide. In my view, the victim's resumption of cohabitation in the year 1988 should result in an inference that previous misconduct, if any, on the part of appellant had been condoned. That cannot be a subject matter of consideration in this case. It is significant that till the chit at Exh.19 was written on 8th April, 1993, there seems to have been no incident of any illtreatment which would constitute cruelty under Section 498A of the Indian Penal Code. The evidence of P.W.3 Namdeo would show that after parties resumed cohabitation, victim had given a birth to a daughter and son. Except for allegations about illtreament which have surfaced after death of victim, there is nothing to show that in the five years period since 21st June, 1988 till chit dated 8.4.1993 was written, there was any incident of any illtreatment.

9. The prosecution examined victim's daughter Manisha as P. W. 4. She was about 16 years when she deposed before the Court. She stated that the appellant used to ask the victim to bring some amount from her parent's house and also used to ask to get agricultural land and for this reason the appellant used to beat and abuse the victim frequently at the interval of one or two days. P. W. 4 Manisha further stated that Aparadhbai, a neighbour who has been examined as P. W. 6, used to intervene. P. W. 4 Manisha is also the witness of event which occurred on 28.1.1995. She states that on that day she returned from the school at about 12.30 a.m. She took her meal. She found that the appellant was sleeping in the house and her mother was washing the clothes in the bath-room. She states that after having her meal, she went to market to purchase articles as directed by her mother and returned at 1.00 p.m. At that time she saw the victim was placing the clothes for drying on the terrace. The victim came down and again went to the terrace for drying hair. She also claims to have gone to the terrace, but again came back and went for playing. After some time she again went to terrace, when she found that her mother was vomiting and did not talk to her. She claimed to have called Razia Takawade P. W. 5 and other neighbours. One Faizal, allegedly went downstairs and approached the appellant. After seeing the victim, the appellant is stated to have said that the victim had consumed poison. She states that the appellant and Prafulla Patil brought the victim down from the terrace by dragging her. She was taken to C. P. R. hospital by auto rickshaw. She stated that her mother expired at 3.05 p.m. In the cross examination witness stated that when she saw her mother vomiting, she enquired with her mother, but mother did not tell her anything. She states that her father was required to be awakened from the sleep and then only he came to the terrace.

10. P. W. 5 Razia Takawade is the neighbour who was staying with her aunt Asha Apradh P. W. 6. She stated that the appellant used to beat and torture the victim on the ground that the victim did not prepare meal properly and she did not behave properly. She stated that her aunt Asha used to intervene in the quarrel. She stated that on 28.1.1995 she saw the victim coming to the terrace and placing the clothes on the clothesline. She states that the victim went down and came back to the terrace within 5 minutes alongwith her daughter Manisha and then suddenly the victim collapsed. She claims to have gone down and called the appellant, when the appellant stated that it was poisoning. Then the appellant dragged the victim downstairs. She stated that the appellant threw the victim in rickshaw and also claimed to have been told by the appellant that let the victim die as victim was his wife. In cross examination she admitted that there were disputes between the appellant and victim on the ground that the victim did not prepare the meals in time. She also admitted that the appellant had to go to the office at 10.30 a.m. and even upto 10.30 a.m., victim could not prepare the meals. She admitted that both the victim and the appellant used to quarrel with each other. She admitted that her maternal aunt used to tell the victim to prepare meals in time. In the cross examination she admitted that on coming to the terrace, the appellant eqnuired with her as to what happened and on seeing that the victim was vomiting, he found that it was poison. He took the victim to hospital. He stated that one Prafulla Patil lifted the victim and brought her down to the ground floor. This would be contrary to the allegations that the victim was dragged by the appellant and brought to the ground floor. She admitted that her statement did not contain allegation that the appellant threw the victim in auto rickshaw or said to this witness that let the victim die as the victim was appellant's wife.

11. Learned counsel for the appellant also that there was contradiction in the evidence of P. W. 4 Manisha and P. W. 5 Razia. P. W. 5 Razia stated that the victim and P. W. 4 came to the terrace together when such is not Manisha's case. He also submitted that the prosecution was trying to play on the sentiments of the Judge by making Manisha state something which is most unfortunate. Manisha had stated before the Court in her examination-in-chief that the victim had told her that the appellant used to say that the appellant had every right to take the fruits of a tree planted by him. Therefore, the victim had told her to be away from the appellant. She admitted in her cross examination that she had not stated before the police about such caution being given by her mother or her mother's telling her about the appellant's claim that he had every right to take fruits of tree planted by him.

12. P. W. 6 Asha Aparadh, is another neighbour. She stated that the appellant was not maintaining the victim properly and did not provide her enough money to meet the daily needs. She also stated that the appellant used to ask the victim to transfer agricultural land in his name and on that ground used to beat the victim mercilessly and used to abuse her in filthy language. She stated that on 3 to 4 occasions she had tried to convince the appellant. She stated that about two months prior to the incident, she heard noise of throwing something from the house of appellant. Therefore, she went to house of appellant and saw the children crying. She stated that the appellant had once tried to strangulate the victim. Witness stated that the victim used to tell her that the appellant was telling the victim to throw the children from the terrace. On 28.1.1995, the witness claims to have returned to her house at about 2.20 p.m. She stated that she was then informed that the victim had been shifted to C. P. R. hospital. She witnessed the inquest panchnama at Exh.10. She admitted in her cross examination that she was the Secretary of Mahila Dakshata Committee and could not tolerate any husband beating wife unnecessarily or mercilessly. She stated that the torture and beating by appellant was going on for about one year before the victim's death. She, however, admitted that no complaint was made to police. She also stated that the appellant used to torture his wife because she could not prepare the meals properly and in time. She admitted that most of the things deposed by her in the Court were not in her statement before the police. She stated that in the C. P. R. Hospital, she had asked the police to go to the spot and search for the poison bottle. But no such bottle was found.

13. P. W. 7 Yeshwantrao Patil is another neighbour, who states that the relations between wife and husband were strained and they used to quarrel. He states that the appellant 's children used to come to him and inform him about appellant's beating to victim. He denied that he was deposing falsely at the instance of P. W. 5. Learned counsel for the appellant submits that his evidence is only in the form of hearsay.

14. P. W. 9 Police Constable Dastagir Mulla, P. W. 10 API Tipugade, have performed various tasks in investigation. Learned counsel for the appellant submitted that first statement of Manisha had been withheld. As rightly pointed out by the learned APP, this is not so and contradicted part of her first statement dated 24th February, 1995 is at Exh.29. Learned counsel for the appellant submitted that from the evidence of P. W. Nos 5 and 6, it is clear that the dispute between the appellant and victim were on account of victim's not cooking meals in time and nothing more. He submits that even according to version of P. W. 5 Razia on the incidental evening, the victim had gone down after putting the clothes for drying on the terrace and within only five minutes she returned to the terrace and was found vomiting and therefore, he submits it is hard to believe that in those five minutes the appellant provoked the victim to commit suicide either by beating or doing any act which would lead the victim to commit suicide.

15. Learned APP submits that the victim was suffering from illtreatment for a very long time and that something must have been happened in those five minutes which triggered the victim to commit suicide. She submits that the appellant was the only person at his house. It was for the appellant to explain as to what happened in those five minutes and therefore, according to her, the concept of custodial death should be enough to fasten the responsibility of victim's death on the appellant.

16. Learned counsel for the appellant submitted that the appreciation of evidence by learned trial Judge was misdirected first because the learned trial Judge relied on the evidence of P.W. 1 Keshar and P. W. 2 Shankar which had no bearing on the facts of the case, secondly, because the learned trial Judge did not see that the earlier discord between the parties had been resolved by the parties by entering into agreement at Exh.18, and lastly because he was unduly influenced by what Manisha stated before the Court. Learned counsel also submitted that there was absolutely nothing to show that the victim was illtreated on account of any unlawful demand and chit at Exh.19 appears to be concocted. In any case according to learned counsel, the chit is of the year l993 and incident occurred in the year 1995 and, therefore, had no proximate connection with the incident.

17. Learned counsel submitted that mere quarrel, which is part of domestic life, cannot constitute provocation sufficient to infer that the appellant abetted commission of suicide by his wife. For this purpose he relied on the judgment of this Court in Maulaali Yakub Jamadar & ors -vs- The State of Maharashtra, reported in 2000 Vol. 102 (3) Bom. L. R. 544 : [2001 ALL MR (Cri) 317]. As to the deposition of P. W. 4 Manisha, learned counsel for the appellant relied on the judgment of Supreme Court in Taruna alias Gautam Mukherjee -vs- State of West Bengal, reported in 2001 Cri. L. J. 4937, to support his contention that the improvements made by P.W. 4 Manisha, which were not part of her statement under Section 161 of the Code of Criminal Procedure, would discredit her. On the question of proximity of alleged illtreatment and the suicide by the victim, learned counsel relied on the judgment of this Court in Radhakisan Kachru Khandagale & anr -vs- State of Maharashtra, reported in 2011 Cri L.J. 2612 : [2011 ALL MR (Cri) 1413].

18. I have gone through the judgments. First, the learned trial Judge should not have been influenced by the irrelevant evidence of P. W. 1 Keshar and P. W. 2 Shankar. Secondly the learned Judge should not have taken into consideration the conduct attributed to the appellant in the maintenance proceeding and should not have influenced by the judgment at Exh.19 in the face of agreement at Exh.18 whereby the parties had resumed cohabitation. The learned Judge should have also seen that the demand of one acre land by the victim by chit at Exh.19 was dated 8.4.1993 and had no proximate connection to the suicide which the victim committed on 28.1.1995. As rightly pointed by the learned counsel for the appellant the learned trial Judge should have seen that the evidence of neighbours P. W. 5 Asha and P. W. 6 Razia showed that the quarrels between the appellant and his wife were on account of victim's not cooking meals at proper time and other such reasons. Lastly the evidence of P. W. 4 Manisha and P.W.5 Razia would show that there is nothing to indicate that on the incidental day the appellant had indulged in such conduct as would have provoked the victim to commit suicide. Merely because the appellant was at home it would not imply that the appellant was responsible for victim's taking her life.

19. Learned counsel for the appellant submitted that it is not known as to the circumstances in which victim consumed poison endosulphan as has been observed in C. A. report at Exh.13, death certificate at Exh.11, notes of postmortem examination at Exh.12. He points out that no bottle of endosulphan was found in the house. Learned counsel for the appellant is right in submitting that it would be too far fetched to infer that merely because appellant was at home, in the five minute interval in which the victim consumed endosulphan, the appellant was responsible, for provoking the victim to commit suicide.

20. In view of this the conviction of the appellant for the offences punishable under Sections 498A and 306 of the Indian Penal Code cannot at all be sustained. The appeal is, therefore, allowed. The conviction of the appellant for the offences punishable under Sections 498A and 306 of the Indian Penal Code, and sentences of rigorous imprisonment for three years with fine of Rs.5,000/- or in default rigorous imprisonment for one year, imposed upon the appellant, on each of the two counts, are set aside. The appellant is acquitted of the said offence.

Appeal allowed.