Bombay High Court
Satishraj Gautam Ramteke vs The State Of Mah.Thr.P.S.O.Ballarsha on 6 June, 2018
Author: Manish Pitale
Bench: Manish Pitale
Cri.Appeal 273/01 @ Revn.156/01 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL No. 273/2001
WITH
CRIMINAL REVISION NO.156/2001 (SUO MOTU)
Satishraj s/o Gautam Ramteke,
Aged about 32 years,
R/o Ballarsha, P.S. Ballarsha,
District : Chandrapur. APPELLANT
.....VERSUS.....
The State of Maharashtra,
through P.S.O. Ballarsha,
District Chandrapur. RESPONDENT
Mr. R.M. Daga, counsel for the appellant.
Mr. Vishal Gangane, Additional Public Prosecutor for the respondent.
CORAM :MANISH PITALE, J.
DATE : 6 TH JUNE, 2018.
ORAL JUDGMENT
By this appeal, the appellant has challenged the judgment and order dated 14.09.2001 passed by the Court of 3 rd Additional Sessions Judge, Chandrapur (Trial Court) in Sessions Case No.51 of 1996 whereby, the appellant has been convicted under Sections 306 and 498-A of the Indian Penal Code (I.P.C.) being sentenced to suffer rigorous imprisonment for a period of three years and one year respectively.
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Cri.Appeal 273/01 @ Revn.156/01 2 Judgment
2. The prosecution case in brief is that the appellant got married to the deceased Mamta @ Maya in July-1993 and that after marriage, they started residing at Durgapur, where the appellant was posted as a clerk. Thereafter, the appellant was transferred to Ballarsha where he shifted along with his wife (deceased). In October-1995, the deceased gave birth to a son and thereafter, her mother came to stay with the appellant and the deceased at Ballarsha.
3. The incident in question in the present case took place in the morning on 04.12.1995 when the mother of the deceased claimed to have heard shouts of the deceased from her room where she had allegedly poured kerosene on herself and set herself ablaze. Since the room was bolted from inside, the fire could not be extinguished in time and the deceased suffered 100% burns and died instantly in the room. One Ambadas Besekar (PW2), a neighbour, saw the aforesaid incident and gave information to the police station at Ballarsha, on the basis of which a report of accidental death was recorded under Section 174 of the Code of Criminal Procedure (Cr.P.C.). On the basis of the said report, investigation was initiated and spot panchnama as well as seizure memo were prepared.
4. The maternal uncle and the aunt of the deceased being PW3 and PW1 respectively, claimed to have reached Ballarsha upon getting ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 3 Judgment information about the incident at about 9.00 p.m. On 06.12.1995, they submitted a report to the Police Inspector at Ballarsha in which they claimed that the deceased was driven to commit suicide because of the harassment meted out by the appellant on her. It was claimed that due to the nature of the appellant and his behaviour towards the deceased, she was unhappy, leading to her suicide. There was no immediate registration of offence in pursuance of the aforesaid report. It was on 17.01.1996 that first information report (F.I.R.) was registered in the police station at Ballarsha, wherein the Police Sub-Inspector R.J. Sharma (PW-8 Investigating Officer) was the informant. In the said F.I.R., it was stated that the appellant had scolded and misbehaved with the deceased on a trifle matter and that he had suspected her fidelity, leading to the deceased committing suicide and that therefore, offence was registered against the appellant under Sections 498-A and 306 of I.P.C.
5. On the basis of the registration of the aforesaid offence, investigation was completed and charge was framed on 28.11.2000 against the appellant for having committed the aforesaid offences. In order to prove its case, the prosecution recorded evidence of eight witnesses. PW1-Sujata Meshram was the maternal aunt of the deceased, PW-2 Ambadas Besekar was the neighbour who informed the police about the incident, PW3-Bhaurao Meshram was the maternal uncle of the deceased, PW4-Pratibha Jambhulkar was a lady who claimed to have ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 4 Judgment corresponded with the appellant for the proposal of marriage, PW5- Sulochana Khobragade was the mother of the deceased, PW6-Devendra Dhande and PW7-Vijay Gowardhan were the panch witnesses on the seizure and spot panchnama and PW8-Raj Narayan Sharma was the Investigating Officer. On the basis of the investigation, documentary evidence was placed on record and it was claimed by the prosecution that the case had been proved beyond reasonable doubt against the appellant.
6. The statement of the appellant (accused) under Section 313 of Cr.P.C. was recorded by the trial Court. There was no defence witness examined on behalf of the appellant.
7. On the basis of the aforesaid oral and documentary evidence and material on record, by the impugned judgment and order dated 14.09.2001, the trial Court found that the guilt of the appellant had been proved and consequently he was convicted and sentenced in the aforesaid manner. The trial Court found that there was sufficient evidence on record to conclude that the deceased had suffered harassment at the hands of the appellant and further that his action of corresponding with PW4 and her father for proposed marriage, even during subsistence of marriage with the deceased, proved to be the major factor which drove the deceased to commit suicide. The trial Court also found that since the ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 5 Judgment death of the appellant's wife had occurred within seven years of the marriage, the presumption under Section 113-A of the Evidence Act, 1872 operated against the appellant and that therefore, in the totality of circumstances, the prosecution had indeed proved its case.
8. Mr.R.M. Daga, Advocate, learned counsel appearing on behalf of the appellant, submitted that the impugned judgment and order passed by the trial Court was unsustainable because it was not based on proper appreciation of the evidence and material on record. According to the learned counsel, there was no evidence on record to prove that the appellant had harassed his wife, driving her to commit suicide. The alleged incidents of harassment were all stated for the first time by the prosecution witnesses, only after the incident and there was no material to show that during the two and half years of marriage, the appellant had indulged in any activity that would amount to causing grave harassment to his wife, leading to her suicide. It was contended that the theory about the deceased being driven to suicide due to proposed marriage between the appellant and PW4, was baseless because there was no such statement in the evidence of any of the material prosecution witnesses including the mother and the maternal uncle or the maternal aunt of the deceased to show that there was indeed such a proposal in the pipeline about which the deceased had knowledge. It was pointed out that although PW4 had proved letters written by her and her father to the ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 6 Judgment appellant, the letters allegedly written by the appellant were never placed on record and mere reference to them was not sufficient. In respect of the presumption under Section 113-A of the Evidence Act, 1872, it was submitted by the learned counsel that such a presumption would arise only after the prosecution had successfully placed on record the evidence to show that the appellant had inflicted cruelty on the deceased as contemplated under Section 498-A of the I.P.C. In the absence of sufficient material placed on record by the prosecution, the aforesaid presumption would not operate against the appellant. The learned counsel relied upon the judgments of the Hon'ble Supreme Court in the case of Atmaram s/o Raysingh Rathod Versus State of Maharashtra [(2013) 12 SCC 286], Mangat Ram Versus State of Haryana [(2014) 12 SCC 595] as well as the judgment of this Court in the case of The State of Maharashtra Versus Rajkumar Chandrakant Kavade & Others (2018 All MR (Cri) 1458).
9. Per contra, Learned Additional Public Prosecutor Mr.Vishal Gangane appearing on behalf of the State, submitted that there was sufficient evidence and material on record to show that the appellant had indeed harassed his wife and that she was driven to commit suicide. It was submitted that the trial Court had correctly appreciated the material on record, particularly the fact that the appellant corresponded with PW4 and her father in respect of proposal of marriage even during the ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 7 Judgment subsistence of marriage between him and the deceased. The trial Court had taken into consideration all such factors in the correct perspective while passing the impugned judgment and order. It was submitted that no interference was warranted in the conviction and sentence imposed by the trial Court on the appellant.
10. Before embarking upon the analysis of evidence and material on record in the present case, it would be appropriate to first deal with the aspect of presumption under Section 113-A of the Evidence Act, 1872, that has been employed by the trial Court against the appellant in the present case. Since the death of the wife of the appellant had occurred within seven years of marriage, the aforesaid presumption had been pressed into operation. Although such a presumption is rebuttable, the onus in such cases would certainly shift on the accused and it would be necessary to examine as to whether such a presumption could be properly raised against the appellant in the facts and circumstances of the present case.
Section 113-A of the Evidence Act, 1872 reads as follows:-
"113-A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 8 Judgment of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.- For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860)."
11. In this context, Section 498-A of the I.P.C. also becomes relevant, which reads as follows:-
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.__ Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.__ For the purposes of this section, "cruelty" means --
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 :::
Cri.Appeal 273/01 @ Revn.156/01 9 Judgment
12. It is relevant that Section 113-A of the Evidence Act, 1872 specifically states that for the purpose of this section "cruelty" shall have the same meaning as under Section 498-A of the I.P.C. A perusal of the above quoted Section 498-A of the I.P.C. shows that the word "cruelty"
has been defined in the explanation appended to the said provision. In this context, Courts have taken into account both the above quoted provisions to analyze as to in what circumstances, the aforesaid presumption can be raised against the accused. In its judgment in the case of Atmaram Versus State (Supra), the Hon'ble Supreme Court in this context has held as follows:-
"10. A reading of Section 498-A IPC would show that if the husband or relative of the husband of a woman subjected such woman to cruelty, they shall be liable for the punishment mentioned herein. Moreover, the Explanation to Section 498-A IPC defines 'cruelty' for the purpose of Section 498-A IPC, to mean (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. A reading of Section 113-A of the Evidence Act, 1872 will show that for the purposes of Section 113-A of the Evidence Act, 1872, 'cruelty shall have the same meaning as in Section 498-A IPC. Hence, to convict a husband or any relative of the husband of a woman or to draw ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 10 Judgment up presumption as to abetment of suicide by a married woman by her husband or any relative of her husband in case of suicide committed by a woman within a period of seven years from the date of her marriage, there must first be evidence to establish that such husband or the relative of her husband committed cruelty of the nature, described in clauses (a) or (b) of the Explanation to Section 498-A IPC."
13. In the case of Mangat Ram Versus State of Haryana (Supra), the Hon'ble Supreme Court has held as follows:-
"30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term 'the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband' would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the Courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act."::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 :::
Cri.Appeal 273/01 @ Revn.156/01 11 Judgment
14. This Court in the case of The State of Maharashtra Versus Rajkumar (Supra), in this context, has held as follows:-
"5. I have perused the record and proceedings including deposition of witnesses and documentary evidence adduced by the prosecution. In the case in hand, Ujwala Kavade, a married woman, undisputedly died within twenty months of her marriage with accused no.1 Rajkumar Kavade. Section 113-A of the Evidence Act deals with presumption as to abetment of suicide by a married woman. The presumption under Section 113A of the Evidence Act can be drawn when it is proved that suicide has been committed by a married woman within seven years of her marriage and that, her husband and his relatives had subjected her to cruelty. However, such presumption is required to be raised by having regard to all other attending circumstances of the case. This is a rebuttal presumption. It is required to be raised only when the prosecution establishes its initial onus of proving cruelty to a married woman by accused persons as defined by Explanation to Section 498A of the Indian Penal Code. To establish cruel treatment to a married woman, the prosecution is enjoined to establish that married woman was subjected to such a treatment, so as to drive her to commit suicide or to cause grave injury or danger to her life, limb or health. Such conduct is required to be wilful. Similarly, harassment of a married woman with a view for coercing her or any person related to her to meet any unlawful demand for property or valuable security also amounts to cruelty as defined by Explanation to Section 498A of the Indian Penal Code. Let us, therefore, examine whether evidence of the prosecution meets this requirement."
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15. The aforesaid position of law clearly demonstrates that it is for the prosecution to first prove that there is sufficient evidence on record to conclude that the accused had indeed inflicted "cruelty" upon the deceased wife and that it is only thereafter that the presumption under Section 113-A of the Evidence Act, 1872 would come into operation. It is in this backdrop that the evidence in the present case will have to be analyzed to examine the correctness or otherwise of the impugned judgment and order passed by the trial Court.
16. A perusal of the evidence of PW1 (maternal aunt of the deceased), PW3 (maternal uncle of the deceased) and PW5 (mother of the deceased) would show that all of them have referred to the appellant having inflicted harassment upon the deceased. It is claimed by PW1 that the deceased used to tell her about the fact that the appellant suspected her character and that he used to pick up quarrels with her. It is also claimed by the said witness that the deceased had told her about the beatings inflicted by the appellant on the deceased. But, in the cross-examination the said witness has clearly admitted that all such details about the alleged harassment and beating were not stated by her in her statement to the police. Apart from this, she had also admitted that the appellant never demanded dowry.
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17. The evidence of PW3 (maternal uncle of the deceased) is very brief, wherein he merely states that the deceased was subjected to harassment by the appellant and that he used to pick up quarrels with her. But, in the cross-examination he has admitted that he had never been to the place of the deceased after her marriage and he further admits that the accused was admitted in hospital for treatment with burn injuries after the incident dated 04.12.1995. A perusal of the evidence of PW5 (mother of the deceased) shows that she had gone to stay with her daughter after delivery of child and that she was staying with her at the time of the incident. This witness states that in the morning on the date of the incident, the appellant refused to take tea from the deceased and taunted her, picking up a quarrel with her. She claimed that she intervened between the two and thereafter went away for washing clothes and that thereafter she heard shouts of her daughter and on reaching the room she found that her daughter had burnt herself to death. In the cross-examination, the said witness admitted that the appellant never demanded any dowry. The said witness also admitted that all her statements about harassment, quarrelsome nature of the appellant and denial of food to her daughter, etc. were not mentioned in her statement to the police. All these omissions were put to her in cross- examination.
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18. A perusal of the evidence of PW4 shows that her father had found the name of the appellant in the marriage bureau, as a result of which, he had corresponded with the appellant for proposal of marriage with the said witness. It was claimed that letters were written by her and her father vide Exhibits 32, 33 and 34, without the knowledge that the appellant was already married. This witness has referred to and proved letters dated 04.07.1994 and 18.06.1994 written by her father to the appellant and letter dated 24.11.1994 sent by her to the appellant. In these letters, there is reference made to the letters allegedly sent by the appellant in response but, none of the said letters have been brought on record by the prosecution.
19. Witnesses at PW6 and PW7 are the panch witnesses, whose evidence does not turn the case beyond a point and it is the evidence of PW8-Investigating Officer, which is relevant. A perusal of the cross- examination of this witness shows that all the omissions pointed out in the evidence of the witnesses at PW1, PW3 and PW5 have been put to this witness and it is clear that all such omissions have been proved.
20. The nature of the aforesaid evidence on record shows that although the aforesaid witnesses, particularly PW1, PW3 and PW5 have claimed that the appellant used to harass the deceased, which drove her to commit suicide, there is no material evidence to support the aforesaid ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 15 Judgment claim of the said witnesses. All such statements regarding alleged harassment have been stated for the first time by the said witnesses in their evidence before the Court. None of them even mentioned such alleged incidents in their statements made to the police. It is only at Exhibit 12, a report submitted by PW1 and PW3 jointly to the police on 06.12.1995, that some reference had been made to the alleged harassment by the appellant. But, in the oral evidence before the trial Court, there are material contradictions brought on record. There is no material on record to show that the deceased had indeed complained to any of the aforesaid witnesses about the alleged physical and mental harassment meted out by the appellant to the deceased. On the contrary, the said witnesses have clearly stated that the appellant never demanded any dowry. Therefore, such evidence does not prove "cruelty" under Explanation (b) to Section 498-A of the I.P.C. All that then remains is Explanation (a) to Section 498-A of the I.P.C. which refers to the willful conduct being of such a nature as is likely to drive the woman to commit suicide.
21. In this context, there is scant material on record to come to the conclusion that the appellant throughout matrimonial life of two and half years had acted in such a manner that he had driven the deceased to commit suicide. The trial Court has accepted the statements of PW1, PW3 and PW5 as gospel truth, without ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 16 Judgment appreciating that there were material omissions which were pointed out and proved on behalf of the defence. It is relevant that while the incident occurred on 04.12.1995, the statement of PW5, mother of the deceased, was recorded on 05.01.1996 and F.I.R. was registered much later on 17.01.1996. This factor also adversely affects the case of the prosecution.
22. The trial Court has emphasized on the alleged action of the appellant in seeking to marry PW4 even during the subsistence of the marriage with the deceased. The trial Court has observed that such an action of the appellant must have proved to be devastating for the deceased. But, a perusal of the evidence of PW4 and other material on record shows that there is lack of evidence to come to such a conclusion. Although there is a passing reference made in Exhibit 12, i.e. the report dated 06.12.1995, submitted by PW1 and PW3 before the police, there is nothing in the evidence of the said witness or the mother (PW5) recording such alleged proposal to marry PW4 by the appellant. There is not a single statement in the evidence of the said witnesses in respect of such alleged proposal. In such a situation, the trial Court ought not to have jumped to the conclusion that the appellant intended to marry PW4, which was a factor that had allegedly driven the deceased to commit suicide.
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23. Apart from this, it has come in the evidence of PW8 (Investigating Officer) that both hands of the accused were burnt on the date of the incident and that the appellant was also admitted to hospital at Ballarsha. PW2-Ambadas, the neighbour who reported the incident to the police, has also clearly stated that during the burning of the deceased, the appellant had gone inside his quarter by removing tiles of the roof of the quarter. This itself indicates that the appellant had made attempts to enter the house and perhaps to intervene and save the deceased. This aspect was completely ignored by the trial Court while passing the impugned judgment and order.
24. In view of the above, it becomes evident that the prosecution failed to place on record sufficient evidence to prove "cruelty" as contemplated under Section 498-A of the I.P.C. and consequently, the presumption against the appellant could not have been raised. The evidence of the material prosecution witnesses does not bring out specific incidents of harassment and the evidence in respect thereof is very general in nature, which falls short of satisfying the requirement of Section 498-A of I.P.C. Even otherwise, the only specific incident about which PW5 (mother of the deceased) has stated concerning the date on which the incident took place, also appears to be not sufficient to hold that the appellant could be said to have driven the deceased to commit suicide or to have abetted her in taking the extreme step of suicide. As a ::: Uploaded on - 12/06/2018 ::: Downloaded on - 13/06/2018 00:28:57 ::: Cri.Appeal 273/01 @ Revn.156/01 18 Judgment consequence, it is not possible to hold the appellant liable under Section 306 of I.P.C. The ratio of the above quoted judgments clearly operates in favour of the appellant herein, demonstrating that the trial Court committed an error in convicting and sentencing the appellant under Section 306 and 498-A of the I.P.C.
25. Accordingly, the instant appeal is allowed. The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of the charges levelled against him. The bail-bond of the accused stands cancelled.
26. As regards Criminal Revision No.156 of 2001 (Suo Motu) which was registered pursuant to order dated 30.10.2001 for enhancement of sentence, when the conviction and sentence of the appellant has been set aside, there would be no necessity to pass any further orders in pursuance of the notice for enhancement of sentence. Consequently, the criminal revision also stands disposed of.
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