IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
09.02.2018
Ashok s/o Haribhau Moon, Aged 34 years, Occ: Labourer, R/o Mandao, Tahsil Hingna, District Nagpur. ……. APPELLANT
…V E R S U S…
Shri C.R. Thakur, Advocate for Appellant. Shri P.S. Tembhare, APP for RespondentState.
J U D G M E N T
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 respondentState.
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 illtreated 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] 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 crossexamination, 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.
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 sisterinlaw. 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.
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. 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 respondentStates 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] 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:
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
Explanation 1.— A person who, by willful misrepresentation, or by willful 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 willful 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. 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. 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:
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 451990 PW5 had stated:
and added:
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.
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