Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO.10 OF 2007
Ramu Shankar Wagh,
Aged about 32 years,
Occupation – Service,
R/o Chande Mangali, Tq. Mouda,
District Nagpur. …. APPLICANT
VERSUS
State of Maharashtra,
through PSO, PS Mouda,
District Nagpur. …. NONAPPLICANT
___________________________________________________________________
Shri R.M. Daga, Advocate for the applicant,
Shri N. Rao, Addl. P.P. for the nonapplicant/State.
___________________________________________________________________
CORAM : M.L. TAHALIYANI, J.
th
DATED : 11 FEBRUARY, 2014.
ORAL JUDGMENT :
1. The applicant has been convicted by the learned Ad hoc
Assistant Sessions Judge, Nagpur, for the offences punishable under Sections
306 and 498A of the Indian Penal Code. In all there were three accused
including the applicant. The applicant was accused No.1 in the Sessions Trial
No.409/2002. Accused Nos. 2 and 3 were brothers of the applicant. All the
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accused were chargesheeted for the offences punishable under Sections 306,
498A and 304B read with Section 34 of the Indian Penal Code. Accused
Nos. 2 and 3 have been acquitted of all the charges framed against them.
Accused No.1/applicant has been acquitted of the offence punishable under
Section 304B of the Indian Penal Code and is convicted of the offences
punishable under Sections 306 and 498A of the Indian Penal Code.
2. The prosecution case, in brief, is that deceased Swati was
married to the applicant on 2652001. The applicant and his brothers were
staying at Village Chande Mangali in TahsilMouda, DistrictNagpur. The
applicant was in a private service at Mouda. He, therefore, along with the
deceased was staying separately from his other family members in a rented
room at Mouda. It is alleged that the applicant and other accused had been
demanding Rs.2,000/ to Rs.3,000/ from the deceased and asking her to
bring the amount from her parents for getting a LPG connection. This
demand was continuously being made. Due to continuous harassment on
the part of the applicant and other accused, the deceased had allegedly
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committed suicide by hanging herself on 26 March, 2002. It is also alleged
that the deceased was being asked to work in the agricultural field after
finishing her domestic work. The applicant used to harass the deceased as
she was unable to work in the agricultural field.
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3. The complaint in respect of the present offences was lodged by
father of the deceased. During the course of investigation, dead body was
sent to the Medical Officer for PostMortem Examination. The Medical
Officer had opined that the deceased had died due to hanging. A ligature
mark was found around neck above the level of thyroid cartilage running
obliquely upwards and backwards. The length of ligature mark was 13 cm.
and its breadth was 4.5 cm. Statements of the witnesses were recorded. The
complainant Mahadeo, his brother Raghunath and mother of the deceased by
name Kusum had stated before the police that the deceased was subjected to
cruelty and that there was a demand on the part of the applicant of
Rs.2,000/ to Rs.3,000/ for getting a LPG connection. It is also stated by
these witnesses that P.W.1Mahadeo and P.W.6Kusum had gone to the house
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of the deceased after the marriage on 7 September, 2001 and that Kusum
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had stayed with her daughter upto 10 September, 2001. During that period
also the deceased had stated to her mother that she was being subjected to
cruelty by the applicant and other accused.
4. The case of prosecution is mainly based on the evidence of
P.W.1Mahadeo, P.W.4Raghunath and P.W.6Kusum. As far as cause of death
is concerned, it is not disputed. It is, therefore, not necessary to discuss the
evidence of the Medical Officer in respect of PostMortem Report and Police
Officer in respect of the Inquest Report. It is also not necessary to discuss the
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evidence in respect of spot panchanama. The only issue, which needs to be
examined in this case, is as to whether the prosecution had been able to
establish that the applicant had subjected the deceased to cruelty. In this
regard, it may be noted here that all the witnesses have highlighted the
incident of demand of Rs.2,000/ to Rs.3,000/ for getting a LPG connection.
There was some general allegations also. However, as far as specific incident
is concerned, the only incident narrated by the witnesses is in respect of the
said demand of Rs.2,000/ to Rs.3,000/ for getting a LPG connection.
5. Learned Counsel Shri R.M. Daga has submitted that the
evidence is short of proving the charge of demand of dowry. It is submitted
by learned Counsel Shri R.M. Daga that the evidence of P.W.1Mahadeo,
P.W.4Raghunath and P.W.6Kusum is not trustworthy and reliable. It was
brought to my notice that the evidence on the basis of which the conviction
has been arrived at by the learned trial Court and has been confirmed by the
learned appellate Court (Additional Sessions Judge) is missing from earlier
statements of the witnesses. It was brought to my notice that P.W.1
Mahadeo, P.W.4Raghunath and P.W.6Kusum have stated in their cross
examination that they had stated before the police during the course of
recording of their statements that the deceased had told that there was
demand of Rs.2,000/ to Rs.3,000/ for getting a LPG connection. However,
the police statements are silent on this aspect. The Police Officer has stated
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that the statements were recorded as per the say of the witnesses. The joint
reading of evidence of P.W.1Mahadeo, P.W.4Raghunath, P.W.6Kusum and
P.W.8Mr. Damodhar Rathod, Police SubInspector would clearly show that
the witnesses had not stated before the police that the deceased was being
continuously tortured on account of dowry.
6. The learned trial Court has convicted the applicant for the
offence punishable under Section 306 of the Indian Penal Code with the help
of Section 113A of the Indian Evidence Act.
7. Before I proceed further, let me reproduce certain legal
provisions, which are relevant to the present case. Abetment has been
defined under Section 107 of the Indian Penal Code as under :
“ 107. Abetment of a thing – A person abets the doing of a thing,
who
First – Instigates 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. ”
8. As such intentional aid, by any act or illegal omission, is the
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integral part of the offence of abetment to commit suicide. However, in the
present case, the learned trial Court has pressed provision of Section 113A
of the Indian Evidence Act into service. Section 113A of the Indian Evidence
Act runs as under :
“ 113A . 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 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.”
As such to draw a presumption under Section 113A of the
Indian Evidence Act, it is necessary to prove that (i) the deceased had
committed suicide within a period of seven years from the date of her
marriage; (ii) her husband or relative of her husband had subjected her to
cruelty; and (iii) once it is proved that the deceased had committed suicide
within a period of seven years and she was subjected to cruelty by her
husband or relative of her husband, the Court might presume that such
suicide has been abetted by her husband or such relative of her husband.
However, the Court has to take into consideration all other circumstances of
the case while taking help of Section 113A of the Indian Evidence Act.
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9. The cruelty has been defined under Section 498A of the Indian
Penal Code as under :
“ 498A . 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 purpose of this section, “cruelty” means
(a) any willful 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.”
10. The case of the applicant will have to be examined keeping in
view the provision of Clause (b) of Explanation to Section 498A of the
Indian Penal Code. The prosecution was under obligation to prove that the
applicant had harassed the deceased with a view to coercing her or any
person related to her to meet the demand of Rs.2,000/ to Rs.3,000/ and
that the said demand was unlawful or the applicant was causing harassment
to the deceased on account of her failure to fulfill the demand. If this is not
established in the present case, the charges under Sections 498A and 306 of
the Indian Penal Code will fail.
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11. Let us now, therefore, go by the evidence of prosecution
witnesses. As already stated by me that cause of death has not been
disputed. There is no independent witness except the evidence of P.W.1
Mahadeo, P.W.4Raghunath and P.W.6Kusum. The major portion of evidence
on which the prosecution relies is found to be omitted by the witnesses while
giving their statements before the police. I have examined the judgments and
orders of both the Courts below. The learned trial Judge has not taken into
consideration the effect of omissions. Therefore, the judgment of the learned
trial Court suffers from severe infirmity inasmuch as a very crucial issue,
which could have changed the direction of the judgment, has not been taken
into consideration. The learned appellate Court i.e. the Court of Additional
Sessions Judge has considered the effect of omissions in the earlier
statements of the witnesses. While considering the effect of omissions, the
learned Additional Sessions Judge has stated that it was not necessary for the
witness to mention each and every aspect of cruelty in the First Information
Report because First Information Report was not encyclopedia of the whole
case. The learned appellate Court failed to take note of the fact that the
major allegation against the applicant and other accused was in respect of
demand of Rs.2,000/ to Rs.3,000/ for getting a LPG connection. Therefore,
if that portion of the evidence is found missing from the police statements, it
creates a serious doubt about the correctness of evidence of the witnesses. As
already stated by me that there are no other allegations except some general
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remarks made by the witnesses. The case of prosecution is that the deceased
had committed suicide because the parents could not meet demand of Rs.
2,000/ to Rs.3,000/ for getting a LPG connection. If this portion of
evidence is missing from the police statements, it cripples the prosecution
case to a large extent.
12. As such, in my considered opinion, the cruelty aspect has not
been established by the prosecution beyond all reasonable doubts. Once the
prosecution has failed to establish allegations of cruelty, the presumption
under Section 113A of the Indian Evidence Act could not have been drawn
in favour of the prosecution. In that situation, it is for the prosecution to
establish on the basis of other evidence that the applicant had intentionally
aided, by any act or illegal omission, the abetment of commission of suicide
by the deceased. There is no evidence to establish any act or omission on the
part of the applicant, which might have instigated the deceased to commit
suicide. As such charge under Section 306 of the Indian Penal Code fails
miserably. As far as charge under Section 498A of the Indian Penal Code is
concerned, it is now obvious that the said charge also fails. In this regard, it
may be additionally noted that the statement made by the deceased to her
father, mother and uncle few days or few months before her death could not
be admissible in evidence under Section 32(1) of the Indian Evidence Act as
far as charge under Section 498A of the Indian Penal Code is concerned as
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the cause of death of the deceased was not in question for the said charge.
As such there is no evidence at all to establish the charge under Section 498
A of the Indian Penal Code. Both the charges fail miserably. Both the
judgments and orders of the Courts below will have to be set aside and the
applicant will have to be acquitted. Hence, I pass the following order.
The criminal revision application is allowed.
The judgment and order dated 27102004 passed by the learned
Ad hoc Assistant Sessions Judge in Sessions Trial No.409/2002 of Nagpur
Sessions Division, convicting the applicant for the offences punishable under
Sections 498A and 306 of the Indian Penal Code, is set aside. The judgment
and order dated 21122006 passed by the learned Additional Sessions Judge
in Criminal Appeal No.85/2004 of Nagpur Sessions Division is also set aside.
The applicant is acquitted of the offences punishable under Sections
306 and 498A of the Indian Penal Code.
His bail bonds shall stand cancelled.
The revision application accordingly stands disposed of.
JUDGE.
pma
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