NEERAJ SUBHASH MEHTA )…APPLICANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Excerpt:By catena of judgments of this court as well as Apex
Court what amounts to cruelty as envisaged by Explanation to
Section 498A of IPC is explained. Cruelty implies harsh and
harmful conduct with certain intensity and persistence. It covers
acts causing both physical and mental agony and torture or
tyranny and harm as well as unending accusations and
recrimination reflecting bitterness putting the victim thereof to
intense miscarries. The conduct, in order to prove guilt, must be
such as strongly stirring up the feeling in the mind of a married
woman that life is now not worth living and she should die, being
the only option left. In other words, provisions of Section 498A of
the IPC envisages intention to drawing or force a woman to
commit suicide by unabetted persistence and grave cruelty. A
willful conduct of such a nature as is likely to propel or compel a
married woman to commit suicide or to cause grave injury or
danger to her life, limb or health is required to be established. In
other words, matrimonial cruelty is included from the definition of
legal cruelty. To put it in other words, ordinary petulance and
discord or differences in domestic life does not amount to cruelty.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1213 OF 2016
IN
CRIMINAL APPEAL NO.555 OF 2016
NEERAJ SUBHASH MEHTA )…APPLICANT
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Mr.Subir Sarkar a/w. Mr.Jayant Bardeskar, Advocate for the
Applicant.
Ms.A.A.Takalkar, APP for the Respondent State.
CORAM : A. M. BADAR, J.
DATE : 13th JANUARY 2017.
P.C. :
1 This is an application for suspension of sentence and
releasing the applicant / accused on bail during pendency of the
appeal. The applicant / accused is convicted of the offences
punishable under Sections 498A and 306 read with Section 34 of
the IPC and he is sentenced to suffer rigorous imprisonment for 3
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years for the offence punishable under Section 498A read with
Section 34 of the IPC and to suffer rigorous imprisonment for 10
years for the offence punishable under Section 306 read with
Section 34 of the IPC. In addition, the applicant / accused and the
coaccused are directed to pay compensation of Rs.25,000/ each
to the first informant.
2 Heard the learned counsel appearing for the
applicant / accused at sufficient length. By taking me through the
evidence of witnesses for the prosecution, the learned counsel
pointed out that the incident dated 28th September 2014 is coming
on record from the evidence of PW2 Premlata Sharma – mother of
the deceased. By taking me through evidence of other witnesses
recording the alleged illtreatment, the learned counsel argued
that evidence is lacunae and insufficient to hold that offences
alleged against the applicant / accused are proved.
3 The learned APP opposed the application by
contending that the offence alleged is serious and evidence of
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witnesses examined by the prosecution is sufficient to hold that
the offence is proved and therefore considering the nature of
offence, the applicant / accused is not entitled for bail.
4 I have carefully considered the rival submissions and
also perused the impugned judgment and order as well as
deposition of witnesses.
5 The applicant / accused married Neha Mehta (since
deceased) on 27th April 2009 and thereafter she started cohabiting
with the applicant / accused and his family at Nerul, Navi
Mumbai, in her matrimonial house. Neha Mehta died suicidal
death on 28th September 2014 by hanging herself at the house of
the applicant / accused.
6 On the basis of report lodged by PW1 Kamal Sharma –
father of deceased Neha, the applicant / accused and coaccused
were prosecuted and ultimately convicted and sentenced as
indicated in opening paragraph of this order. Charges of
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subjecting a married woman to cruelty and abetting her to commit
suicide are held to be proved against the applicant / husband.
7 Explanation to Section 498A of the IPC defines the
term cruelty and it reads thus :
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 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.
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Section 107 of the IPC defines the term abetment and this
section reads thus :
107. Abetment of a thing – A person abets the doing of
a thing, who
Firstly 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.
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.
Explanation 2 — Whoever, either prior to or at the
time of the commission of an act, does anything in
order to facilitate the commission of that act, and
thereby facilitate the commission thereof, is said to aid
the doing of that act.
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8 Section 113A of the Evidence Act prescribes rule of
presumption in case of suicidal death by a married woman.
Whenever the question arose as to whether commission of suicide
by a woman has been abetted by her husband or relatives of her
husband and it is shown that she had committed suicide within
the period of seven years of her marriage and that her husband or
relatives of her husband had subjected her to cruelty, then the
court may presume “having regard to all other circumstances of
the case” that such a suicide has been abetted by her husband or
relatives of her husband. It is, thus, clear that, this presumption
cannot be raised automatically on proof of suicidal death within
seven years of marriage and subjecting a married woman to
cruelty. Something more is required to be seen for drawing this
presumption.
9 By catena of judgments of this court as well as Apex
Court what amounts to cruelty as envisaged by Explanation to
Section 498A of IPC is explained. Cruelty implies harsh and
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harmful conduct with certain intensity and persistence. It covers
acts causing both physical and mental agony and torture or
tyranny and harm as well as unending accusations and
recrimination reflecting bitterness putting the victim thereof to
intense miscarries. The conduct, in order to prove guilt, must be
such as strongly stirring up the feeling in the mind of a married
woman that life is now not worth living and she should die, being
the only option left. In other words, provisions of Section 498A of
the IPC envisages intention to drawing or force a woman to
commit suicide by unabetted persistence and grave cruelty. A
willful conduct of such a nature as is likely to propel or compel a
married woman to commit suicide or to cause grave injury or
danger to her life, limb or health is required to be established. In
other words, matrimonial cruelty is included from the definition of
legal cruelty. To put it in other words, ordinary petulance and
discord or differences in domestic life does not amount to cruelty.
By keeping this aspect in mind, let us prima facie examine the
instant case for a limited purpose as to whether the applicant /
accused is entitled for liberty. If the impugned judgment and
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order of the trial court is perused, then it is seen that the
reasoning part is in paragraph 65 of the judgment. Reliance is
placed on evidence of PW1 to PW3 by the learned trial court. It is
observed that the dispute was over the issue of the deceased
having made “kaccha chapati.” Further observations are to the
effect that this was too trivial matter to invoke extreme and harsh
response of calling her brother and parents. In other words, the
learned trial Judge was very well aware of the fact that the
incident of commission of suicide was preceded by a trivial
incident in the matrimonial life of Neha. Still, without further
discussion, offence punishable under Section 498A of the IPC is
held to be proved. Then by taking aid of Section 106 of the
Evidence Act, as well as Section 113A thereof, it is held that the
offence punishable under Section 306 of the IPC is proved.
10 Evidence of PW2 Premlata Sharma – mother of the
deceased, reflects what was the incident which took place just
prior to suicidal death of Neha Mehta. Mother of Neha (PW2)
disclosed this incident by stating that on that day, excluding Neha,
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everybody in her house had breakfast. But when Neha was about
to take breakfast, her husband i.e. the present applicant, asked her
to prepare tea for his mother i.e. the coaccused. Upon that, as
per version of PW2 Premlata Sharma, her daughter informed the
applicant / husband that she is feeling uneasy and unwell. Then
the applicant / husband had spoken bad words about parents and
relatives of Neha i.e. his wife. This incident, according to
prosecution case, as reflected from the evidence of parents and
brother of the deceased, triggered her suicide. Prima facie, this
discloses hyper sensitivity of a wife, and ordinary petulance and
discord in matrimonial life. Prima facie, this incident cannot be
said to satisfy the requirement of ingredients of offence of cruelty
defined in Section 498A of the IPC. Similarly, for making out an
offence punishable under Section 306 of the IPC, what is required
to be proved is mensrea. Without knowledge and intention, there
cannot be an abetment. There must be some active suggestion or
stimulation by accused persons to the victim.
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11 Perusal of evidence of parents of deceased Neha, prima
facie goes to show that they have spoken about matrimonial
cruelty rather than legal cruelty, as according to their averments,
taunts to deceased Neha were to the effect that she was not
knowing how to speak English, how to cook food etc. On this
backdrop, parents of the deceased admitted that their daughter
studied in English Medium at Army Public School and that she
was even cadet in NCC. It has also come on record that after
marriage the deceased continued her education. To crown this all,
it is seen that prior to few months of the incident, PW2 Premlata
Sharma had joined parental relative of deceased Neha to enjoy
trip to Himachal Pradesh, Chandigarh and Delhi etc.
12 In the wake of this evidence against the applicant /
accused, and the fact that during trial, he was on bail, he deserves
liberty, and therefore the order :
i) The application is allowed.
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ii) Substantive sentence of imprisonment imposed upon
the applicant / accused is suspended and he is
directed to be released on bail on executing P.R.Bond
of Rs.15,000/ and on furnishing surety in like
amount.
(A. M. BADAR, J.)
