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2018 DIGILAW 394 (BOM)

Ashok v. State of Maharashtra through P. S. O.

2018-02-09

ROHIT B.DEO

body2018
JUDGMENT : 1. The appellant is aggrieved by the judgment and order dated 28.05.2004 passed by the 3rd Adhoc Additional Sessions Judge, Wardha in Sessions Trial 78/2003, by and under which, the appellant is convicted for offence punishable under Section 498A of the Indian Penal Code ('IPC' for short) and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.500/- and is further convicted for offence punishable under Section 306 of the IPC and is sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.1000/-. The appellant is however, acquitted of offence punishable under Section 304B of the IPC. 2. Heard Shri C.R. Thakur, the learned counsel for the appellant and Shri P.S. Tembhare, the learned Additional Public Prosecutor for the respondent-State. 3. The prosecution case, as is unfolded during the trial, is thus: The marriage of deceased Sau. Sulekha and the accused was solemnized in April, 2001. However, Sulekha was compelled to leave the matrimonial home and to return to her parental home within 2 to 3 months of the marriage in view of the cruelty to which she was subjected by the accused. Concededly, Sulekha hanged herself at her parental house on 04.04.2003. An oral report Exh.27 was lodged by P.W.1 Udhav Laxman Kolhe on 04.04.2003 stating that the accused subjected Sulekha to cruelty to coerce her to fulfill an unlawful demand of Rs.50,000/-, that Sulekha was physically assaulted by the accused who was habituated to consume liquor, that the accused visited the parental house of Sulekha 3 to 4 times and ill-treated her under the influence of liquor during the said visits and that Sulekha disclosed to P.W.1 and his wife Asha Udhav Kolhe P.W.2 that the accused had illicit relationship with his sisterinlaw which he was refusing to end. On the basis of the said report, offence punishable under Section 498A and 304B of the IPC and Section 3 and 4 of Dowry Prohibition Act was registered at the Police Station Selu, District Wardha against the accused. 4. The prosecution essentially and substantially relied on the evidence of the father and mother of the deceased Sulekha, Udhav Laxman Kolhe and Asha Udhav Kolhe who are examined as P.W.1 and P.W.2 respectively and a suicide note Exh.53, to which I shall refer to some in detail, at a later stage in the judgment. 5. 4. The prosecution essentially and substantially relied on the evidence of the father and mother of the deceased Sulekha, Udhav Laxman Kolhe and Asha Udhav Kolhe who are examined as P.W.1 and P.W.2 respectively and a suicide note Exh.53, to which I shall refer to some in detail, at a later stage in the judgment. 5. P.W.1 Udhav Kolhe has deposed that the deceased Sulekha cohabited with the accused at the matrimonial home for hardly 2 to 3 months. The accused was demanding an amount of Rs.50,000/- and threatened Sulekha that should the amount not be given he would seek divorce. The accused, under the influence of liquor was physically assaulting Sulekha. Sulekha told P.W.1 that she was beaten to coerce her to fulfill the unlawful demand for money, is the deposition. P.W.1 further deposes that the accused used to visit his house to demand money and the accused assaulted Sulekha in the presence of P.W.1. The accused used to threaten Sulekha of seeking divorce, should the money not be paid, is the deposition. Prior to 2 to 3 months of the incident the accused had visited the house and agricultural field of P.W.1, is the deposition. P.W.1 has proved the report Exh.27. In the cross-examination, the statement that prior to 2 to 3 months of the incident the accused visited the agricultural field of P.W.1 is brought on record as an omission. P.W.1 denies the suggestion that Sulekha was insisting for divorce from the accused and that she was not willing to cohabit with the accused. P.W.1 further denies the suggestion that there was a quarrel between P.W.1 and Sulekha on the issue of she not being willing to cohabit with the accused. 6. The mother of the deceased Sulekha, Asha Kolhe (P.W.2) deposed that the accused was consuming liquor, was demanding Rs.50,000/- and was threatening to seek divorce in the event of nonpayment of the said amount by the parents of Sulekha. She has deposed that one to two months prior to the incident, the accused visited her house, went to the field, threatened Sulekha and demanded money and threatened to seek divorce if the money is not paid. In the cross-examination the defence has elicited thus: It is true that my husband was saying to her that my daughter should go to her matrimonial house. In the cross-examination the defence has elicited thus: It is true that my husband was saying to her that my daughter should go to her matrimonial house. It is true that because my husband was insisting on my daughter to go to her matrimonial house there was quarrel between my daughter and my husband. I again say that the quarrel was with me also. She also stated that in case that she was compel to go to her husband's house she would end her life. It is true that my daughter was a hot temper person. 7. The suicide note Exh.53, which is duly proved to be in the handwriting of the deceased Sulekha, by the handwriting expert Shri Bhalchand Shidhagauda Biradar (P.W.7) states that the marital life is responsible for the death. The suicide note states that the accused used to consume liquor and physically assault Sulekha daily and used to declare that he would divorce Sulekha but would not give up the relationship with the sister-in-law. It is also stated in the suicide note that the accused used to ask Sulekha to bring money from her father-P. W.1. In all fairness, the learned counsel for the accused Shri Thakur did not seriously dispute either authenticity of the suicide note. Shri Thakur would however, submit that it is absolutely unclear as to when the suicide note was penned. 8. Shri Thakur, the learned counsel would submit that consumption of liquor and physically assaulting the wife would not constitute cruelty within the meaning of Section 498A of the IPC. Shri Thakur invites my attention to the following observation in the Division Bench judgment of this Court in Suresh s/o Vithalrao Ekonkar Vs. State of Maharashtra reported in 2011 ALL MR (Cri) 578 and in particular to paragraph 26 which reads thus: 26. Insofar as the conviction of the appellant/accused for the offence punishable under Section 498A of the Indian Penal Code is concerned, the only evidence led by the prosecution is that of Taibai (P.W.2) and Sadanand (P.W.4). Their evidence only establishes that before the incident the accused used to come drunk and beat Jyoti. Even if this evidence is accepted, still the ingredients of Section 498A of the Indian Penal Code are not made out by the prosecution. Their evidence only establishes that before the incident the accused used to come drunk and beat Jyoti. Even if this evidence is accepted, still the ingredients of Section 498A of the Indian Penal Code are not made out by the prosecution. It cannot be said that the conduct of the accused was such as was likely to drive Jyoti to commit suicide or to cause grave injury or danger to the life, limb or health. Therefore, in our considered opinion, the conviction of the appellant/accused for the offence punishable under Section 498A of the Indian Penal Code is unsustainable in law and as such the accused is liable to be acquitted for the said offence. 9. Shri Tembhare, the learned A.P.P. would submit in rebuttal, that the observations of the Division Bench are to be read and understood not in isolation but in the context of the factual matrix of the case. The Division Bench could not have intended to enunciate, as a statement of law that physically assaulting the wife under the influence of liquor cannot constitute cruelty within the meaning of Section 498A of the IPC, is the submission. It is not res integra, that the willful conduct constituting cruelty includes wilful conduct as is likely to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman and that mental health would include the emotional health and well being of the woman, is the submission. 9. Shri Tembhare, the learned A.P.P. for the respondent-States invites my attention to the judgment of the Apex Court in State of Bengal Vs. Orilal Jaiswal and another reported in (1994) 1 SCC 73 is to buttress the submission that assaulting the wife under the influence of liquor is cruelty. 10. Concededly, the death is within two years of the marriage. Shri Tembhare, submits that since the prosecution has established that the deceased was subjected to cruelty within the meaning of Section 498A of IPC, the statutory presumption under Section 113A of the Indian Evidence is activated. It must be borne in mind that the court is not obligated to invoke the statutory presumption under Section 113A, which is obvious from the employment of the expression 'may presume' in contradiction with the expression 'shall presume' employed in Section 113B of the Indian Evidence Act. 11. It must be borne in mind that the court is not obligated to invoke the statutory presumption under Section 113A, which is obvious from the employment of the expression 'may presume' in contradiction with the expression 'shall presume' employed in Section 113B of the Indian Evidence Act. 11. Having given due consideration to the evidence on record, in my opinion, offence punishable under Section 306 of the IPC is clearly not established. Abetment is defined in Section 107 of the Indian Penal Code thus: 107. Abetment of a thing.- A person abets the doing of a thing, who - First.— Instigation any person to do that thing; or Secondly.— Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.— Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.— A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. 12. The second and the third part of the definition is clearly not attracted. The prosecution case is that the accused instigated the deceased to commit suicide. Instigation, would be wilful act or omission which, to the knowledge of the accused, would in every likelihood drive the woman to commit suicide. It is axiomatic, that implicit in instigation is an element of mens rea. The act or the omission, to constitute instigation, must be done with the intention or knowledge that such act or omission would goad or urge or drive the woman to a stage or situation where she is left with no option but to take the extreme step. An important test which must be applied by the court is the proximity test. It would be necessary for the prosecution to establish a live link between the act or omission and the suicide. The cause and effect relationship must be demonstrated. The proximity test is not a straight jacket formula. An important test which must be applied by the court is the proximity test. It would be necessary for the prosecution to establish a live link between the act or omission and the suicide. The cause and effect relationship must be demonstrated. The proximity test is not a straight jacket formula. The court is obligated to decide, on the facts of the case, whether the conduct of the accused or the cruelty which is alleged is proximate enough to the suicide, to enable the court to record a finding that the conduct or cruelty must have in every probability disturbed the mental equilibrium of the deceased. The deceased, indubitably, was residing with her parents since one and half years prior to the death. She stayed with the accused for hardly three months. The case of the prosecution is that even after the deceased started residing with her parents, the accused used to visit her parental home and threatened her with divorce should she not return to the matrimonial home with money. Even if the entire evidence is taken at face value, the last such visit by the accused was 2 to 3 months prior to the incident. The evidence on record, is not sufficient to infer that during visits the accused subjected the deceased to cruelty of such nature or extent as would persuade her to end her life. That apart, the proximity test is not satisfied. I am not persuaded to hold that even if the prosecution version about what transpired when the accused visited the parental house of the deceased two months prior to the incident, is taken at face value, the mental equilibrium of the deceased would be disturbed to such an extent as would compel her to take the extreme step. I have reproduced supra, the portion of the cross-examination of P.W.2 Asha Kolhe, the mother of the deceased, which would suggest that the parents of the deceased were forcing her to return to the matrimonial home and the deceased was so reluctant that she threatened to commit suicide if forced to return to the matrimonial home. The suicide note, as is pointed out by the learned counsel for the accused is not dated. The suicide note, as is pointed out by the learned counsel for the accused is not dated. However, since the seizure of the suicide note from the blouse of the deceased is irrefutable, and to be fair to the learned counsel for the accused, no submission is advanced questioning the seizure, the absence of date is not really significant. The suicide note indeed blames the accused for consumption of liquor and assault, of being in a relationship with his sister-in-law and for asking the deceased Sulekha to bring money from parents. The contents of the suicide note, however, do not exclude the possibility of the deceased Sulekha having taken the extreme step since she was being pressurized by her parents to return to the matrimonial home. I am not inclined to hold that the prosecution has established the offence punishable under Section 306 of the IPC beyond reasonable doubt. The accused deserves to be acquitted of offence punishable under Section 306 of the IPC. 13. In view of the acquittal of the accused under Section 306 of the IPC, I am left to deal with the offence punishable under Section 498A of IPC. The cause of death or the circumstances leading to the transaction which resulted in death, is no longer in issue. The verbal or written statements of the deceased Sulekha are not admissible under Section 32(1) of the Indian Evidence Act since the cause of death is not an issue. Neither the suicide note Exh.53 nor what is narrated by the deceased to her parents is admissible in evidence. It would be apposite to refer to the judgment of the Apex Court in Gananath Pattnaik Vs. State of Orissa reported in (2002) 2 SCC 619 . The relevant observations of which judgment read thus: 10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. State of Orissa reported in (2002) 2 SCC 619 . The relevant observations of which judgment read thus: 10. Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 PW5 had stated: “Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of a scooter and a two-in-one.” and added: “On 361987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from and her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She further told that 'mate au banchei debenahin'. Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused. The following observations of the Apex Court in Kantilal Martaji Pandor vs. State of Gujarat and another reported in (2013) 8 SCC 781 are also relevant: 17. The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant has starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26.03.1992 written by the deceased to the Police Station. The letter written by the deceased on 26.03.1992 could be relevant only under Section 32(1) of the Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. The High Court in the present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306, IPC. As the cause of the death of the deceased is no more in question in the present case, the statements made by the deceased in the letter dated 26.03.1992 to the Police Station cannot be taken to be proof of cruel acts committed by the appellant for the purpose of holding him guilty under Section 498A, IPC. 18. For taking this view, we are supported by the decision of this Court in Inderpal v. State of M.P. In this case, Inderpal was charged and tried for the offence under Section 306, IPC, and convicted by the trial court for the said offence of abetment of suicide. In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498A, IPC. In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498A, IPC. This finding of the High Court was based on the evidence of the father, mother, sister and another relative of the deceased who deposed on the basis of inter alia the two letters (Exhibits P7 and P8) written by the deceased Damyanti that Inderpal, her husband, had subjected her to beating. This Court found that apart from the statement attributed to the deceased, none of the witnesses had spoken of anything which they had seen directly and the question that this Court had to decide was whether the statement attributed to the deceased could be used as evidence including the contents of Exts.P7 and P8 and this Court held that the contents of Exts. P7 and P8 written by the deceased could not be treated as proof of the acts of cruelty by Inderpal for the purpose of offence under Section 498A IPC. The reasons given by this Court in paragraph 7 of the judgment as reported in the SCC are as follows (Inderpal case, SCC p. 739): “7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P7 or Exhibit P8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.” 14. Even that apart, when we are dealing with an offence under Section 498A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned.” 14. In view of enunciation of law by the Apex Court, the verbal and written statements of the deceased Sulekha must be kept out of consideration as inadmissible. In so far as direct evidence is concerned, P.W.1 Udhav Kolhe has deposed that when Sulekha was residing in his house, the accused was visiting and asking P.W.1 whether the money could be arranged. P.W.1 states that he witnessed the accused asking Sulekha whether she has taken the money from P.W.1. The accused beat Sulekha in the presence of P.W.1, is the deposition. P.W.1 has also spoken of the threat of divorce issued in his presence. He further states that two months prior to the incident the accused had come to his field and house. P.W.1 has however, not testified as to what transpired when the accused is said to have visited his house and the field. The evidence that the accused had visited the field of P.W.1 2 to 3 months prior to the death of Sulekha, is shown to be an omission qua the F.I.R. which refers only to visit to the residence. The evidence that the accused used to beat Sulekha in the presence of P.W.1 when the accused visited estranged Sulekha, is not credit worthy. P.W.2 Asha, the mother of the deceased, does not speak of the accused beating her during his visits to village Nanbardi. Her evidence is that the accused visited village Nanbardi, came to the house of his inlaws, then went to the field and threatened the deceased Sulekha. This evidence is again hearsay since the evidence is based on what is conveyed by Sulekha. The evidence of P.W.2, who is the only witness to prove the cruelty, other than P.W.1 Udhav Kolhe, does not take the case of the prosecution any further. 15. It is trite law, that a conduct which is cruel in the context of matrimonial law may not constitute cruelty for the purpose of Section 498A of the IPC. The evidence of P.W.2, who is the only witness to prove the cruelty, other than P.W.1 Udhav Kolhe, does not take the case of the prosecution any further. 15. It is trite law, that a conduct which is cruel in the context of matrimonial law may not constitute cruelty for the purpose of Section 498A of the IPC. The statutorily defined cruelty must be of a graver nature and extent than the cruelty which is sufficient to be proved to obtain relief under the matrimonial law. The cruelty must be proved by unimpeachable evidence. Vague and general allegations of demand and ill-treatment, bereft of particulars do not constitute proof of cruelty. Ordinarily, the conduct must be persistent and continuous. The proximity test is also of relevance. An aberration or stale incident cannot be pressed into service by the prosecution to prove cruelty. Demand per se is not sufficient to constitute cruelty unless the demand is accompanied by ill-treatment or harassment. 16. The evidence on record, if tested on well recognized parameters, is woefully short of the requisite standard. In this view of the matter, the accused is also entitled to be acquitted for offence punishable under Section 498A of the IPC. 17. In the result, I pass the following order: [i] The judgment and order impugned is set aside. [ii] The accused is acquitted of offence punishable under Section 306 and 498A of IPC. [iii] The bail bond of the accused shall stand discharged. [iv] Fine paid by the accused, if any, shall be refunded.