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2009 DIGILAW 138 (BOM)

Satish Fakira Dhangar v. State of Maharashtra

2009-01-30

V.R.KINGAONKAR

body2009
JUDGMENT: 1. Challenge in this Appeal is to Judgment rendered by learned Additional Sessions Judge, Dhule, in Sessions Case No. 150 of 1994 whereby Appellants were convicted for offences punishable under Section 498-A and 306 read with 34 of the Indian Penal Code and have been sentenced to suffer rigorous imprisonment for one year and for three years along with fine of Rs.500/- in default to suffer rigorous imprisonment for six months each. 2. Appellant No.1 Satish is husband of deceased Kalpana, Appellant No.2 Bapu is his elder brother. Appellant No.3 Latabai is the wife of Appellant No.2 Bapu. The marriage of deceased Kalpana and Appellant No.1 Satish was performed on April 20th, 1990 at village Kadane. She resided with the Appellants in a joint family house for some period. Appellant No.2 Bapu runs a grocery and fair price shop in the village. The parents of deceased Kalpana are inhabitants of a nearby village, namely War (Kadane).There was partition of the house property after some months of the marriage and Appellant No.1 Satish alongwith deceased Kalpana and his parents started residing in one part of the house which was divided by means of a middle wall. Since about at least couple of years before the alleged incident, they were separately residing from Appellants No.2 and 3. Out of the wedlock, Kalpana delivered a female child. The delivery of the child was arranged at her parents house somewhere at fag end of the year 1993. She was sent to the house of Appellant No.1 with customary gifts ("Mool" articles). 3. Indisputably deceased Kalpana met with suicidal death on September 5th, 1994. She had gone to the agricultural land for spreading insecticide called thymet on the crops. Apparently she consumed the insecticide and died due to poisonous contents thereof. On the same day the dead body was subjected to the post mortem examination at Rural Hospital, Sindhkhede. The Medical Officer preserved viscera and sent it to office of the Chemical Analyser in sealed condition. The report of Chemical Analyser confirmed that the death occurred due to consumption of poisonous insecticide called "Thymet". 4. Shorn of unessentials, the prosecution case is that initially for about six months Kalpana was treated well by the Appellants. Thereafter Appellant No.2 Bapu demanded Rs.10,000/- from her father to make purchases of grocery articles. However her father and brother could not arrange for the demanded amount. 4. Shorn of unessentials, the prosecution case is that initially for about six months Kalpana was treated well by the Appellants. Thereafter Appellant No.2 Bapu demanded Rs.10,000/- from her father to make purchases of grocery articles. However her father and brother could not arrange for the demanded amount. He was annoyed due to their failure to comply with the demand. Thereafter the Appellants started giving ill-treatment to Kalpana. They used to taunt, abuse and mentally harass her. She narrated to her father and brother about the ill-treatment during their visits. Somewhere in or about March and April, 1991 she went to house of her parents. She narrated that Appellant No.1 Bapu had attempted to ravish her. Still, however, after some days when Latabai and father of the Appellants No.1 and 2 , namely, Fakira pleaded with her father, and that separate residential arrangement was made, she was sent to reside with the Appellant No.1. Though such partition was effected somewhere in November, 1991 yet she was subjected to cruelty due to non payment of the demanded amount. After the birth of the female child, when she was sent to house of the Appellant No.1 then also the Appellants expressed dissatisfaction about quality of the customary gifts. They troubled deceased Kalpana in the matrimonial house due to giving of articles of inferior quality. She continued to bear with the harassment and trouble for some months. The continuous ill-treatment, harassment and matrimonial cruelty ultimately resulted into commission of her suicide in the morning of September 5th, 1994. Her brother lodged F.I.R. after the funeral. The police carried out certain investigation. On the basis of the material gathered during the course of the investigation, the Appellants were charge sheeted for the offences punishable under Section 498-A, 306 and 304-B read with 34 of the Indian Penal Code. 5. A charge (Exhibit 15) was framed against the Appellants. They entered plea of "Not Guilty". They denied truth into the allegations about matrimonial cruelty. They also denied that unlawful demands were made from relatives of deceased Kalpana. They adopted defence of simple denial. 6. At the trial, the prosecution examined eight (8) witnesses in support of its case. The prosecution also relied upon certain documents produced during course of the trial. On appreciation of the evidence tendered by the prosecution, the learned Sessions Judge held that there was no dowry demand as such. They adopted defence of simple denial. 6. At the trial, the prosecution examined eight (8) witnesses in support of its case. The prosecution also relied upon certain documents produced during course of the trial. On appreciation of the evidence tendered by the prosecution, the learned Sessions Judge held that there was no dowry demand as such. The Sessions Judge came to the conclusion that initially the demand of Rs.10,000/- was made by Appellant No.2 Bapu after about six months of the marriage, by way of hand loan required to arrange purchases of grocery articles for his ration shop. That had no co-relation with the marriage and the subsequent allegations of cruelty. Consequently the Appellants were acquitted for offences under Section 304-B of the Indian Penal Code. The learned Sessions Judge however held that the death occurred within seven years of the marriage and therefore presumption under Section 113-A of the Indian Evidence Act could be raised in favour of the prosecution. He also placed implicit reliance on the versions of the prosecution witnesses. The learned Sessions Judge, therefore, convicted and sentenced the Appellants for the offences under Section 498-A and 306 read with 34 of the Indian Penal Code as described herein above. 7. Mr. Shinde R.S. would submit that the prosecution case is unacceptable in view of the fact that parents of the deceased were not examined as witnesses. He would submit that versions of PW4 Dharmendra, PW6 Firoj and PW7 Dagubai are inadequate to establish the charge. He would submit that the allegations of matrimonial cruelty are vague and have been carved out on account of suspicion entertained by PW Dharmendra i.e. brother of the deceased. He submitted that the prosecution failed to establish element of intentional aiding, goading or instigating deceased Kalpana by the Appellants in the commission of her suicide. He argued that the appreciation of evidence is improperly done by the learned Sessions Judge and therefore the Appellants deserve acquittal from the charges. Per contra learned A.P.P. Mrs. Autade supported the impugned Judgment. 8. Crucial points for determination are: i) Whether it is proved beyond reasonable realm of doubt that deceased Kalpana was subjected to matrimonial cruelty on account of failure of her parental relatives to comply with unlawful demands of the Appellants? Per contra learned A.P.P. Mrs. Autade supported the impugned Judgment. 8. Crucial points for determination are: i) Whether it is proved beyond reasonable realm of doubt that deceased Kalpana was subjected to matrimonial cruelty on account of failure of her parental relatives to comply with unlawful demands of the Appellants? ii) Whether it is proved beyond reasonable realm of doubt that the Appellants or any of them abetted the commission of suicide by deceased Kalpana? 9. Before I proceed to scrutinise the prosecution evidence, it may be mentioned that the allegations of unlawful demand are two fold. The first demand was of Rs.10,000/-. It was the demand made by Appellant No.2 Bapu after about six months of the marriage. It is matter of record that he had requested the father of deceased Kalpana to lend him the amount. The learned Sessions Judge categorically held that the amount was demanded by way of hand loan. Moreover, that was rather a stale incident. Another reason for the alleged matrimonial cruelty is said to be demand for good quality of gift articles after the birth of the female child. Conversely, it was suggested by the defence that Appellant No.1 Satish is simpleton and was not liked by Kalpana. It was also suggested that she was dissatisfied with the share of property allotted to him during course of the family partition. She was further unhappy due to extra work load which was result of the internal partition between the two brothers. It was the case of the Appellants that Kalpana committed the suicide due to her mental depression without any kind of contribution on their part. 10. At the threshold, it may be made clear that the prosecution case hinges upon appreciation of evidence of PW4 Dharmendra, PW6 Firoj and PW7 Dagubai. Out of them PW7 Dagubai is the wife of cousin of PW4 Dharmendra. Her house is adjacent to the residential house of PW4 Dharmendra. She has no personal knowledge as regards the demand in respect of Rs.10,000/- which was put forth after about six months of the marriage. The version of PW Dharmendra purports to show that Appellant No.2 Bapu had asked him and his father to give Rs.10,000/- in making purchases of grocery articles. They could not pay him. His version purports to show that Appellant No.2 Bapu had come to his village with his daughter by name Annapurna and Kalpana. The version of PW Dharmendra purports to show that Appellant No.2 Bapu had asked him and his father to give Rs.10,000/- in making purchases of grocery articles. They could not pay him. His version purports to show that Appellant No.2 Bapu had come to his village with his daughter by name Annapurna and Kalpana. Since the amount could not be arranged, Appellant No.2 Bapu left the village whereas Annapurna and Kalpana remained back at the parents house of Kalpana. Subsequently she was reached to the house of the Appellants by her father - Shivlal. He left her at house of the Appellants and returned to the village. PW Dharmendra claims that he visited house of the Appellants after about one month and then Kalpana had narrated him that due to non payment of the amount she was being harassed and ill treated by the Appellants. He deposed further that she complained to him that the Appellants were beating her and were threatening to kill her if the money was not paid. 11. The version of PW Dharmendra purports to show that somewhere in the month of November, 1990 the so-called incident of attempted sexual advances by the Appellant No.2 Bapu had taken place. His version purports to show that Appellant No.3 Latabai and her sister had visited his house to take back Kalpana to the matrimonial home. Both the women apologised for the mistake committed by Appellant No.2 Bapu. However Kalpana was not sent with them. Somewhere in December 1990 / January, 1991 her father in law came to fetch her. He assured that partition would be effected between his two sons. Thereafter she was sent with him for cohabitation with the Appellant No.1. Thus, somewhere from January, 1991 till the unfortunate incident of her suicide in the first week of September, 1994 she and the Appellant No.1 were separately residing together with her inlaws. 12. The close scrutiny of versions of PW Dharmandra and Dagubai go to show that Kalpana did not ventilate any particular grievance regarding the so-called matrimonial cruelty after she started residing separately with the Appellant No.1 and till she came to the parents house for the purpose of delivery of the child. The version of PW Dagubai shows that after about January, 1991 till the pregnancy of Kalpana, she had not come back to the parents house. The version of PW Dagubai shows that after about January, 1991 till the pregnancy of Kalpana, she had not come back to the parents house. There is no whisper in her version that Kalpana was being ill-treated by the Appellants during the relevant period of about three years. Needless to say the incident of demand of Rs.10,000/- by way of loan had no bearing on the subsequent conduct of the Appellant No.1. It was a stale incident. It is difficult to appreciate that the alleged ill-treatment was continued after the separation of the Appellant Nos. 1 and No.2, on account of such a stale incident of demand for loan amount, particularly when no details of alleged cruelty are set out by the witnesses. 13. Cross examination of PW Dharmendra reveals that it is customary in his community to present "Mool" articles of gift after the marriage or delivery of child. He admits that Kalpana appraised him of the fact that the partition of agricultural field and the house property was effected between the two brothers. After such partition, the Appellants No.2 and 3 had no reason to trouble deceased Kalpana. Though PW Dharmendra deposed that he had pleaded with the Appellants that they should not harass and ill-treat Kalpana yet there is glaring omission, in this context, in his police statement. His police statement also does not show that he had visited house of the Appellants to ascertain whether really partition was effected. There is also glaring omission in his police statement about allegations of threats given by the Appellants to Kalpana to kill her in case the money was not paid by her relatives. His version reveals that no attempt was made to verify whether grievance of Kalpana about her attempted ravishment by Appellant No.2 Bapu was truth bearing. He admits, unequivocally, that after the partition between Appellants No.1 and 2 Kalpana never came back to the parents house. He admits further that she used to tell him and other relatives that being the junior daughter in law in the matrimonial house, she was required to do more domestic work. His version reveals that the Appellant No.1 is illiterate. 14. The recitals of the F.I.R. (Exhibit 32) go to show that the allegations of matrimonial cruelty are vague. The recitals of the F.I.R. would show that deceased Kalpana used to ventilate grievances about extra domestic work load. His version reveals that the Appellant No.1 is illiterate. 14. The recitals of the F.I.R. (Exhibit 32) go to show that the allegations of matrimonial cruelty are vague. The recitals of the F.I.R. would show that deceased Kalpana used to ventilate grievances about extra domestic work load. Her husband i.e. the Appellant No.1 did not pay heed to her complaints. The recitals of the F.I.R. lodged by PW Dharmendra would show that the gift articles were given before about three months of her death. There is no allegation in the F.I.R. about matrimonial cruelty between the relevant period of three months prior to her death. 15. Coming to the version of PW Firoj, it may be gathered that he is bossom friend of PW Dharmendra. At this juncture it may be pointed out that cross examination of PW Dagubai would make it manifest that PW Dharmendra lodged the F.I.R. when PW Firoj instigated him to do so. Her version would make it amply clear that they had deliberated and discussed as to what type of complaint should be lodged. Thus, after funeral of Kalpana, PW Firoj, PW Dharmendra and PW Dagubai discussed about the course of action. They deliberated as to what should be the nature of complaint. The F.I.R. is not reflective of the impulsive statement of PW Dharmendra alone but is end product of the common discussion between the witnesses. 16. PW Firoj makes a sweeping statement that Kalpana had told him that because of non payment to Appellant No.2 Bapu, she was being harassed by the Appellants. He vaguely states that they were taunting and insulting her. He states that during his visit to matrimonial house of Kalpana, she had informed him that she was required to do more domestic work inspite of the partition and there was practically no partition. He did not give particulars of his visit to her matrimonial house when the so-called information was given by her. He was unable to tell the month or year of his visits to the matrimonial house of deceased Kalpana. 17. The version of PW Firoj would make it manifest that deceased Kalpana used to write letters to her parents. He states that he had read some of those letters. According to him, all such letters were in respect of some or other programme like marriage etc. 17. The version of PW Firoj would make it manifest that deceased Kalpana used to write letters to her parents. He states that he had read some of those letters. According to him, all such letters were in respect of some or other programme like marriage etc. He further admits, unequivocally, that in none of those letters she complained of any harassment to her by the Appellants. He deposed that in those letters Kalpana used to refer him by name. His version reveals that PW Dharmendra required medical treatment in Hospital at Mumbai and was being admitted for a month or two, at the intervals, during the relevant period. These admissions of PW Firoj would give serious jolt to the case of prosecution. There is absolutely no explanation coming forth as to why letters written by deceased Kalpana were not collected during the course of investigation. There is no explanation as to why parents of deceased Kalpana were not examined. The letters written by Kalpana to her parents appear to be ex-culpatory of the Appellants and were, therefore, withheld. 18. The testimony of PW8 A.P.I. Shri Mali reveals the steps taken by him during the investigation. He carried out the inquest Panchanama (Exhibit 27) on the dead body of Kalpana in the same evening. His version reveals that statements of persons residing in the neighbourhood of the Appellants were recorded during course of the investigation. He admits that he did not come across evidence of ill-treatment or harassment to deceased Kalpana at hands of the Appellants from the statements of such neighbours. It is not necessary to elaborately discuss the remaining evidence. The version of PW 1 Dr. Lad corroborates the post mortem notes (Exhibit 24). Though PW2 Shriram was examined as Pancha of Spot Panchanama (Exhibit 26) and corroborated the same, yet during the cross examination he echoed to the suggestions of the defence. He admits that Kalpana did not like the Appellant No.1. He admitted that the Appellant No.1 is a naive and simpleton person. He admitted that he never heard of any ill-treatment to Kalpana by the Appellants. The version of PW3 Arun shows that the police seized a canister of thymet at instance of Appellant No.1. Recovery of thymet is of no much significance. 19. He admitted that the Appellant No.1 is a naive and simpleton person. He admitted that he never heard of any ill-treatment to Kalpana by the Appellants. The version of PW3 Arun shows that the police seized a canister of thymet at instance of Appellant No.1. Recovery of thymet is of no much significance. 19. The cumulative effect of the foregoing discussion is that there are only sweeping allegations about ill-treatment and harassment of deceased Kalpana in the matrimonial house. It is probable that she was dissatisfied due to simpleton nature of the Appellant No.1 and unbearable load of domestic work after the partition amongst the two brothers. The evidence on record does not show that the ill-treatment was on account of failure to pay demanded loan of Rs.10,000/- to the Appellant No.2. It appears that the F.I.R. was prepared after due deliberations between PW Dharmendra, PW Firoj and PW Dagubai etc. The sweeping allegations of matrimonial cruelty by themselves would not be sufficient to raise presumption about abetment of the Appellants in the commission of her suicide. The presumption under Section 113-A of the Indian Evidence Act requires consideration of "all other circumstances of the case", before it may be invoked. The learned Sessions Judge appears to have overlooked the expression "having regard to all other circumstances of the case", before raising of the presumption. 20. In Bhagwan Das vs. Kartar Singh and others (2007 AIR SCW 3107), the Apex Court held that harassment of wife by husband or inlaws due to differences would not per se attract Section 306 of the Indian Penal Code. In Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh ( AIR 2002 S.C. 1998 ), the Apex Court held that mere utterances of the words "go and die" by the accused without any intention, by itself, would not amount to instigation to the suicide. 21. In Ravindra Pyarelal Bidlan and others vs. State of Maharashtra (1993 CRI. L.J. 3019) a Single Bench of this Court held that mere harassment or mere demand for property would not amount to matrimonial cruelty. It is further held that there must be reasonable nexus between the cruelty and suicide. Mere proof of cruelty or suicide by itself would not be enough to prove the charges for an offences under Section 498-A and 306 of the Indian Penal Code. 22. It is further held that there must be reasonable nexus between the cruelty and suicide. Mere proof of cruelty or suicide by itself would not be enough to prove the charges for an offences under Section 498-A and 306 of the Indian Penal Code. 22. The Apex Court in Rajbabu and another vs. State of M.P. (2008 ALL M.R. (Cri.) 2894 S.C.) observed: "The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband or any relative of her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband or any relative of her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman." 23. This Court in "Sitabai @ Sevantabai w/o Honaji Wanje and another vs. State of Maharashtra" (2008 ALL M.R. (Cri.) 883), held that mere allegations of harassment made by the deceased would not be sufficient to constitute the offence of cruelty. It is further held that unless ingredients of offence within Section 107 of the Indian Penal Code are made out, the accused cannot be convicted for offence punishable under Section 306 of the Indian Penal Code. This ratio is applicable to the facts of the present case too. 24. Taking a stock of the evidence on record and the relevant legal position, I have no hesitation in holding that the prosecution failed to prove alleged matrimonial cruelty and abetment of the suicide of Kalpana by the Appellants. They should not have been convicted on the basis of the sweeping allegations about the matrimonial cruelty. The learned Sessions Judge committed patent error while raising presumption under Section 113-A of the Indian Evidence Act in the absence of appropriate substratum to infer degree of cruelty which could drive deceased Kalpana to commit the suicide. Under these circumstances, the impugned Judgment of conviction and sentence is quite unsustainable. 25. In the result, the Appeal is allowed. The impugned Judgment is set aside. Under these circumstances, the impugned Judgment of conviction and sentence is quite unsustainable. 25. In the result, the Appeal is allowed. The impugned Judgment is set aside. The Appellants are acquitted of the charge for offences punishable under Section 498-A and 306 read with 34 of the Indian Penal Code. Their bail bonds be deemed as cancelled. The fine amount paid, if any, be refunded to them. The property articles shall be destroyed. Appeal allowed.