2013 ALL MR (Cri) 513
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.C. CHAVAN, J.

Shri Sudam Laxman Kute Vs. The State Of Maharashtra

Criminal Appeal No. 238 of 1996

4th December, 2012

Petitioner Counsel: Mr. DEEPAK A. PATIL
Respondent Counsel: Mrs. P.P. SHINDE

(A) Penal Code (1860), S.498A - Cruelty - Inconsistency in story for demands and ill-treatment which surfaced only after victim's death - Victim visited her parents house in the course of one year of marriage for 3 to 4 times, on each occasion victim was taken back by the appellant's family - No evidence that victim was ever subjected to any such cruelty as would attract penal provisions of section 498-A of IPC - During panchnama which was drawn up when the victim was taken out of well, father of deceased specifically told the police that he had no grievance, as the victim's death was accidental - Conviction set aside.(Paras 10, 11)

(B) Evidence Act (1872), Ss.113A, 113B - Presumption under - In case where there is no suicide, there is no question of abetment to commit suicide and where there is no charge of dowry death there is no question of looking into section 113B of the Evidence Act. (Para 9)

JUDGMENT

JUDGMENT :- This appeal is directed against the conviction of the appellant, by the learned Additional Sessions Judge, Nashik, for the offence punishable under Section 498A of the Indian Penal Code and sentence of rigorous imprisonment for three months with fine of '10,000/- or in default of payment of fine rigorous imprisonment for further period of three months, imposed upon the appellant on the conclusion of trial of Sessions Case No.133 of 1995, before him. By the said judgment the learned Judge had acquitted the appellant for offence punishable under Section 306 of the Indian Penal Code and acquitted all the other co-accused of all the offences for which they were charged.

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

Victim Sangita was married to appellant on 29.4.1994. There were grievances of the appellant's family about Sangita's inability to perform domestic work. It was alleged that when Sangita had been to her parent's house for festival of Sankranti in January, 1995, she reported that the appellant and his relations had asked Sangita to get a sum of '20,000/- for purchasing a Colour Television Set and '40,000/- for purchasing a tractor. The victim alleged that she was illtreated because of this reason. The victim was not sent to her parent's house for the festival of Gudi Padwa in March, 1995. On 24th April, 1995, the victim died as a result of drowning in well. Police had been informed and after performing inquest, they caused the dead body to be sent for postmortem examination. On a report by victim's father, offence was registered and investigation commenced. In the course of investigation, police recorded the statement of witnesses and on completion of investigation sent the chargesheet to the Court of learned Judicial Magistrate First Class, Niphad, District: Nashik, who committed the case to the Court of Sessions at Nashik.

3. The learned III Additional Sessions Judge, Nashik to whom the case was made over, charged the appellant and his family members of offences punishable under Sections 498A and 306 of the Indian penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 7 witnesses in its attempt to bring home the guilt of the accused persons. After considering the evidence of prosecution witnesses in the light of defence of denial, the learned Judge acquitted of other accused of all the offences charged and also acquitted the appellant of offence punishable under Section 306 of the Indian Penal Code, but convicted and sentenced the appellant of offence punishable under Section 498A of the Indian penal Code as aforementioned. Aggrieved thereby, the appellant is before this Court.

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

5. P. W. 1 Vasant, the victim's father, and P.W.3 Janabai, the victim's mother, stated about the unlawful demands allegedly made by the appellant's family and the illtreatment alleged meted out to their daughter. In the F. I. R. at Exh.22 proved by P.W.1 Vasant, it was stated that the unlawful demand of sum of '20,000/- for purchasing T.V. set and '40,000/- for purchasing tractor were conveyed to them by their daughter when she came for the festival of Sankranti, i.e. 8 months after marriage. However, in their evidence both these witnesses stated that the victim had conveyed to them about 3 to 4 months after the marriage that there was such unlawful demand. Though the learned Additional Public Prosecutor submitted that this discrepancy is minor, in cases which rest on this type of evidence about demands and illtreatment surfacing after victim's death these inconsistencies would be material. There was no reason for P. W. 1 Vasant or P. W. 3 Janabai to state that the demands were made three months after the marriage.

6. The learned counsel for the appellant submitted that though it had been alleged that victim was illtreated and it was sought to be made out that the appellant had neglected the victim, when the victim had undergone surgical operation of tonsillectomy, the cross examination of P. W. 1 Vasant would show that this was not so. P. W. 1 Vasant had stated that the appellant's family members had come to his village Khambale 3 to 4 times for fetching the victim, in a marriage which lasted about one year. The victim had been to her parent's house for 3 to 4 times and on every occasion somebody from the family of the appellant had gone to bring her back. Learned counsel for the appellant is right in submitting that had there been unlawful demands, or illtreatment on account of non fulfillment of those demands, appellant and his family members should have been reluctant to bring the victim back.

7. Learned counsel further points out that P. W. 1 Vasant admitted in his cross examination that whenever he visited the appellant's house at Dongargaon, he had camped there overnight. This would show that the parties had cordial relationship. Had there been any unlawful demands or bickering on that count, there would have been no reason for P. W. 1 Vasant to stay at the house of the appellant. This too is inconsistent story for demands and illtreatment which is surfaced after victim's death. Though in the F.I.R. at Exh.22, it was sought to be made out that when the victim underwent tonsillectomy, the appellant's family did not pay visit, in the cross examination P. W. 1 Vasant clarified that the appellant's family members sent a message that there was absolutely no quarrel between the victim and accused person and due to agricultural operations P. W. 1 Vasant should send Sangita to the appellant's house. Thus, it is clear, according to learned counsel for the appellant that the victim's father sought to exaggerate the instances. He pointed out that F. I. R. at Exh.22 itself recounts that the victim was at the house of parents for 25 days in January, 1995, when she underwent surgical operation. It is not that the appellant's family was not desirous that the victim should report to matrimonial home. On the other hand F.I.R itself recounts that appellants alleged that P. W. 1 Vasant and his family members had unnecessarily kept Sangita at their house and that she should be sent to the matrimonial home. The learned counsel is right in submitting that all this would be inconsistent with unlawful demands or illtreatment on account of non fulfillment of such demands.

8. P. W. 2 Bharat is a panch witness of panchnama at Exh.24, which was drawn up when the victim was taken out of well. The learned Judge had recorded that since the panchnama was admitted there was no examination-in-chief of the witness and witness was allowed to be cross examined by the defence. This witness stated in the cross examination that the appellant had asked P. W. 1 Vasant, whether he had any complaint about victim's death, whereupon P. W. 1 replied that since victim had died accidentally, he had no complaint against anybody. It is worthy of note that the Prosecutor incharge of the case did not feel it necessary to question the witness after he made such statement in his cross examination. Incidentally a suggestion to this effect was made to P. W. 1 Vasant in his cross examination, but P. W. 1 Vasant denied the same. The evidence of P. W. 2 Bharat would clearly show that the victim's death was possibly accidental. In fact the learned trial Judge has answered the point as to victim's commission of suicide in the negative. He has also acquitted the appellant of the charge of abetment to commit suicide.

9. The learned Additional Public Prosecutor submitted that the learned trial Judge was justified in convicting the appellant and for this purpose sought to invoke presumption under Section 113-A of the Evidence Act. This attempt of the learned Additional Public Prosecutor has been rightly repelled by the learned counsel for the appellant who submitted that in this case since there is no suicide, there is no question of abetment to commit suicide and since there is no charge of dowry death there is no question of looking into section 113-B of the Evidence Act.

10. After having acquitted the appellant of offence punishable under Section 306 of the Indian Penal Code, the learned Judge could have held the appellant guilty of offence under Section 498A of the Indian Penal Code only if there was evidence to establish cruelty as defined under the said Section. There can be no doubt, as the learned Additional Public Prosecutor submits, that even if abetment to commit suicide is not proved, the conduct which drives a woman to commit suicide would also quality to be cruelty. However, in this case there is absolutely no evidence that the victim was ever subjected to any such cruelty as would attract penal provisions of section 498A of the Indian Penal Code. First, there is inconsistency in respect of time victim's conveying the unlawful demand to her parents. Secondly the victim seems to have visited her parents house in the course of one year of marriage 3 to 4 times. On each occasion, victim was taken back by the appellant's family. The victim's father had also visited the appellant's house on number of occasions and was treated well. And, the proverbial last nail in the coffin prosecution case comes from P. W. 2 Bharat who states that P. W. 1 Vasant had specifically told the police that he had no grievance as the victim's death was accidental. In view of this the conviction of the appellant for the offence punishable under Section 498A of the Indian Penal Code recorded by the learned Judge is thoroughly unwarranted.

11. The appeal is therefore allowed. The conviction of the appellant for the offence punishable under Section 498A of the Indian Penal Code and sentence imposed is set aside. The appellant is acquitted of said charge.

Appeal allowed.