Bombay High Court
Shamrao vs State Of Maharashtra on 24 March, 2004
Equivalent citations: I (2005) DMC 364
Author: P Brahme
Bench: P Brahme

JUDGMENT P.S. Brahme, J.

1. This appeal is filed by the appellant original accused challenging the judgment dated 1.6.2000, passed by II Additional Sessions Judge, Osmanabad, in Sessions Case No. 173 of 1999, by which he is convicted for offences under Sections 498-A and 306 of Indian Penal Code and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for three months and to undergo rigorous imprisonment for four years and to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for six months, respectively.

2. On the night of 6.4.1998, at about 9.00 p.m. the victim Sangita, the wife of accused, committed suicide in the house in the presence of accused by pouring kerosene on her person. The appellant tried to extinguish the fire in his bid to save his wife Sangita. She suffered 100 per cent burns. She was brought to the hospital and while she was undergoing treatment, Police Head Constable Abdul Shaikh (P.W. 10), who was attached to Civil Hospital Out Post, Solapur, recorded her statement, after she was examined and certified to be conscious to give statement by Dr. Suryakant Kamble (P.W. 8), who was then Medical Officer attached to Solapur Civil Hospital. In her statement, she made a disclosure that on earlier day she was ill-treated and subjected to cruelty by her husband appellant, as she sold clandestinely some quantity of Jawar and on account of that tortured by the appellant, she committed suicide by pouring kerosene on her person. She has also stated that her husband, who was very much present in the house, extinguished the fire and brought her to the hospital. This statement, which is marked Exh. 39, was accepted as dying declaration, which is first in time. This statement was forwarded to Tamalwadi Police Station and treated as First Information Report. Offence was registered under Section 498-A of Indian Penal Code vide C. R. No. 8 of 1998. While Sangita was undergoing treatment in the hospital, on that night at about 1.35 a.m. the Executive Magistrate Haridas Dhobale (P.W. 7) recorded statement of Sangita after Medical Officer Dr. Appasaheb Ingle (P.W. 9) on examining her certified that she was conscious and well oriented to give statement. This statement, which is marked Exh. 34 is treated and accepted also as the dying declaration. In this statement also the victim Sangita made a disclosure about the incident that took place on the night of 6.4.1998, wherein she poured kerosene on her person and herself set on fire for the reason that her husband subjected her to cruelty as she sold some quantity of Jawar. The fact that her husband extinguished fire is also specifically stated and incorporated in the statement Exh. 34. After the offence was registered, the Investigating Officer Police Sub-Inspector Shaukat Jamadar (P.W. 6) took up the investigation in the matter, Sangita succumbed to injuries on 9.4.1998. She died of burns, as opined by Medical Officer who carried autopsy on her body. After completing investigation, appellant was sent up for trial for offences under Sections 498-A and 306 of Indian Penal Code, first in the Court of Judicial Magistrate, First Class, Tuljapur, who in turn committed the case to the Court of Sessions.

3. Before the trial, charge Exh. 7 was framed and the appellant, when his plea was recorded, pleaded not guilty to the charge and claimed to be tried. At the trial, prosecution examined in all ten witnesses, including Hausabai (P.W. 2), Savita (P.W. 3) mother and sister of Sangita, who surprisingly did not support the prosecution case; Sunita (P.W. 4), who is admittedly residing in the neighbourhood of appellant; Mangal Yadav (P.W. 5), who happens to be wife of brother of appellant, but she did not support the prosecution; PSI Saukat Jamadar (P.W. 6), who carried out the investigation; Haridas Dhobale (P.W. 7) the Executive Magistrate, who recorded dying declaration Exh. 34; Dr. Suryakant Kamble (P.W. 8); Dr. Appasaheb Ingle (P.W. 9) and Abdul Farid Shaikh (P.W. 10) the Police Head Constable, who recorded first dying declaration Exh. 39. The defence of the appellant was of denial. However, he did not deny the fact that his wife Sangita committed suicide by pouring kerosene on her person in the house and suffered burns of which she died. He did not dispute that in his attempt to save his wife Sangita while she was burning in flames, he also suffered burn Injuries for which he was treated in the hospital. The learned trial Judge accepting the dying declaration, Exhs. 34 and 39 and oral evidence of witnesses Sunita (P.W. 4) and Mangal (P.W. 5) found that Sangita was subjected to cruelty and as she admittedly committed suicide on account of cruelty meted out to her by appellant, he was found guilty for offences under Sections 498-A and 306 of Indian Penal Code, and in keeping with these findings, the learned trial Judge convicted and sentenced the appellant as stated above. Hence this appeal challenging the judgment and order of conviction and sentence.

4. I have heard Mr. M. K. Deshpande, Advocate appointed for the appellant and Mr. S. D. Kaldate, learned Additional Public Prosecutor for the respondent and with their assistance I have gone through the evidence so far recorded at the trial, as also the judgment of the Trial Court. I have perused the record. I have critically examined the evidence of witnesses, who have supported the prosecution. Before dealing with the submissions made by the parties, I must state that the trial Court has rightly accepted the dying declarations Exhs. 34 and 39. On the evidence of Executive Magistrate Dhobale (P.W. 7), Police Head Constable Abdul Shaikh (P.W. 10) and both the Medical Officers, namely, Dr. Kamble (P.W. 8) and Dr. Ingle (P.W. 9), it is clinchingly proved that victim Sangita was conscious, physically as well as mentally, when her statements were recorded. Both the statements stood the test of scrutiny. There was no question of any kind of tutoring Sangita when her statements were recorded, nor it was the contention of defence that when the statements were recorded Sangita was under influence of any person to make a statement. It is in this background that we have no hesitation in accepting statements Exhs. 39 and 34 as dying declarations.

5. As regards the evidence of witness Hausabai (P.W. 2) and Savita (P.W. 3), their evidence is left out of consideration, as both of them did not support the prosecution. The Trial Court has rightly not taken into consideration their evidence. As such, their evidence is of no assistance to the prosecution. But then, having regard to the fact that Sangita was married to appellant some 12 years before and she used to visit her parents’ house to meet her mother, sister and father, she expressed no displeasure or grudge against the conduct of the appellant of ill-treating her, is a circumstance, which, in my opinion, falsifies the claim of the victim in her statements Exhs. 39 and 34, as also the evidence of witness Sunita (P.W. 4) and Mangal (P.W. 5). In the nature of things, if really there had been constant torture, harassment and ill-treatment on the part of appellant to the victim, in all probability, the victim Sangita would have first disclosed it to her near relatives, namely, her mother, father and sister. What is surprising in this case is that Sangita has not claimed in her statements i.e. dying declarations at any time in the past even on single occasion that she had informed her parents or sister about the harassment and ill-treatment meted out to her by the appellant. I do not wish to give much emphasis on the fact that these two witnesses Hausabai (P.W. 2) and Savita (P.W. 3) in their evidence did not state or declined to state that Sangita informed them about ill-treatment meted out to her. But then, since both of them, being near relations of Sangita, having not supported the prosecution case, appears to be something strange. At least, the prosecution has not come out with any tangible material to justify as to why these two witnesses did not support the prosecution. Therefore, this fact of both these witnesses having not supported the prosecution has its own bearing on the credibility of the evidence of witnesses Sunita (P.W. 4) and Mangal (P.W. 5).

6. The learned Additional Public Prosecutor, in his submissions, contended that witness Sunita (P.W. 4) in her evidence has candidly stated about the factum of quarrel that used to be between Sangita and the appellant and that appellant used to abuse during quarrel and that on the day when the incident took place Sangita set herself on fire because on that day the appellant had beaten her and she was subjected to cruelty. The learned Additional Public Prosecutor has also pointed out from the evidence of witness Mangal (P.W. 5) that Sangita and Shamrao used to quarrel with each other after every 4 to 8 days and Shamrao used to abuse Sangita who used to keep quiet and that this quarrel was going on right from the beginning of the marriage and that both of them were not listening to the advice of anybody and that Sangita was not able to bear with the quarrel and she was frustrated due to such quarrel. The learned Additional Public Prosecutor submitted that this evidence coupled with the statements Exhs. 39 and 34 clinchingly go to show that Sangita was subjected to cruelty and there was constant harassment to her by the appellant and the effect of this constant torture on her was that she was driven to commit suicide as clinchingly stated by her in her dying declaration Exhs. 34 and 39. That is how, the learned Additional Public Prosecutor justified the conviction of the appellant for the offences.

7. As against this, Mr. Deshpande, Advocate for the appellant vehemently submitted that even accepting the statements made by victim in her dying declarations and also the evidence of witnesses Sunita (P.W. 4) and Mangal (P.W. 5) and also admitting the fact that Sangita committed suicide in the manner in which stated by her, it cannot be said that Sangita was subjected to cruelty as continued under Section 498-A of Indian Penal Code, particularly as provided in (sic) (a) to Section 498-A of Indian Penal Code. The crux of his submission is that some instances of cruelty or harassment on the part of the husband simpliciter without there being any intention to drive married woman to commit suicide, will not amount to cruelty as contemplated under Section 498-A of Indian Penal Code. Referring to the facts emerged through the evidence is this case, the learned counsel for the appellant submitted that except the cause of selling Jawar by the victim and quarrel having ensued on that ground, there was no allegation of harassment and cruelty against the appellant though admittedly appellant and Sangita lived married life for 12 years. The learned Counsel further submitted that once that element of cruelty as contemplated under Section 498-A of Indian Penal Code is not established, the appellant cannot be found guilty merely because Sangita admittedly committed suicide. Even to attract offence under Section 306 of Indian Penal Code, according to the learned Counsel, there must be element of wilful conduct and that too instigating, inciting or encouraging the victim to commit suicide. In this context, he with emphasis submitted that admittedly the appellant attempted to put out fire with the intention to save his wife Sangita. There is no evidence nor it was the claim of victim Sangita in her dying declarations that appellant did any positive act to aid her commission of suicide. If that is so, then appellant’s conduct in trying to extinguish the fire with the intention to save Sangita is a circumstance which militates against impugned intention and alleged wilful conduct and, therefore, he cannot be said to be guilty of offence under Section 306 of Indian Penal Code.

8. Before embarking upon the submissions made by the learned Counsel for the appellant, as also that of learned Additional Public Prosecutor, it is better to have precise legal position in respect of offences under Sections 498-A and 306 of Indian Penal Code. Section 498-A provides that when a husband or a relative of the husband of a woman subjects such woman to cruelty, he shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The term “cruelty” has been defined in Explanation to Section 498-A. Hence, it is not any and every cruelty that is made punishable but only cruelty as defined under the Explanation. Sub-clause (a) of the Explanation provides that, cruelty means, 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. Sub-clause (b) of the Explanation to Section 498-A provides that, cruelty means 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. This Sub-clause (b) does not make each and every harassment cruelty. The harassment is to be with definite object, namely, to coerce the woman or any person related to her to meet any unlawful demand. Therefore, mere harassment by itself is not cruelty. Mere demand for property, etc. by itself is also not cruelty. It is only when the harassment is shown to have been committed for the purpose of coercing a woman to meet the demands, is cruelty and this is made punishable under the section. In other words, it is not every harassment or every type of cruelty that would attract provisions of Section 498-A of Indian Penal Code. It must be established that beating or harassment was with a view to force the woman to commit suicide or to fulfil illegal demands of the husband (sic) laws. So far as the case before hand is concerned, there is no allegation that Sangita was subjected to cruelty by the appellant on account of non-fulfilment of demand of any nature. If that is so, then application of Sub-clause (b) of Explanation to Section 498-A of Indian Penal Code does not arise.

9. Having regard to the allegations made by the prosecution against the appellant and the evidence that is led to substantiate the allegations, it is crystal clear that cruelty alleged was under Sub-clause (a) of the Explanation to Section 498-A of Indian Penal Code. Hence the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide. The prosecution has to establish not only cruelty but also the fact that the cruelty alleged was of such a gravity as was likely to drive Sangita to commit suicide. Even if suicide is established, as in the case before hand it is admitted that she committed suicide, it has further to be established that it was occasioned on account of cruelty which was of sufficient gravity so as to lead a reasonable person placed in similar circumstances to commit suicide.

10. Mr. Deshpande, Advocate has placed reliance on a decision of our High Court in Ravindra Pyarelal Bidlan and Ors. v. State of Maharashtra, 1993 Cri.L.J. 3019, wherein the accused were acquitted by the Trial Court of the offence under Section 306 of Indian Penal Code but they have been convicted for offence under Section 498-A of Indian Penal Code having found established that the victim was subjected to cruelty. The High Court, however, while setting aside the conviction for offence under Section 498-A of Indian Penal Code observed that if the cruelty is by itself established and the fact of suicide is also established, it would not be sufficient to bring home the guilt of committing cruelty as defined in Explanation (a). A reasonable nexus has to be established between the cruelty and the suicide in order to make good the offence of cruelty. The High Court, on facts and evidence, found that the cruelty alleged and even established was not sufficient to drive the victim to commit suicide. It was found that the evidence was not sufficient even to establish the factum of cruelty as contemplated under Section 498-A of Indian Penal Code.

11. The decision of the Apex Court in Girdhar Shankar Tawade v. State of Maharashtra, III (2002) SLT 447=I (2002) DMC 780 (SC)=2002 (2) Crimes 360 (SC), has been relied upon by the Counsel for the appellant. In this case, the Apex Court has explained the purpose and meaning of cruelty as defined in Section 498-A of Indian Penal Code. The basic purport of the statutory provisions is to avoid ‘cruelty’ which stands defined by attributing a specific statutory meaning attached thereto as noticed herein before. Two specific instances have been taken note of in order to ascribe a meaning to the word ‘cruelty’ as is expressed by the legislatures: Whereas explanation (a) involves three specific situations, viz. (i) to drive the woman to commit suicide, or (ii) to cause grave injury, or (iii) danger to life, limb or health, both mental and physical; and in Explanation (b), there is absence of physical injury but the Legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of ‘cruelty’ in terms of Section 498-A.

12. The Apex Court observed that as regards the core issue as to whether charges under Sections 306and 498-A of Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, there are long catena of cases in affirmation thereto. In order to justify the conviction under Section 498-A, there must be available on record some material or cogent evidence. In that regard, on facts the Apex Court found that on record there were two inconsistent versions on the issue of cruelty. The Apex Court found that even on the assumption that there is contradiction is oral testimony of the witnesses, that by itself would not bring home the charge under Section 498-A of Indian Penal Code, as the allegations of cruelty were not sufficient to establish cruelty as contemplated under Explanation (a) to Section 498-A of Indian Penal Code. The Court below in that case, factum of suicide is not proved and, therefore, the Apex Court observed that if suicide is left out, in that event, neither the question of applicability of Explanation (a) would not arise, nor the second limb to cause injury and danger to life or limb or health would be attracted. In this context, the Apex Court observed that in any event, the wilful act and/or conduct ought to be the proximate cause in order to bring home the charge under Section 498-A of Indian Penal Code and not de hors the same. To have an event sometime back cannot be termed to be a factum taken note of in the matter of a charge under Section 498-A of Indian Penal Code.

13. The learned Additional Public Prosecutor placed reliance on the decision in Ajit Singh and Ors. v. State of Haryana, 1997 Cri.L.J. 659. In that case, the question that arose was in respect sufficiency of the material before the Court for framing charge for offence under Section 498-A of Indian Penal Code. It was pointed out that there was sufficient evidence on record to presume that the accused has committed the offence under Section 498-A of Indian Penal Code. However, the Court did not take into consideration that material merely because the. averment in the complaint or First Information Report were vague and the accused persons were discharged. In that context, it was observed that the order of discharge of the accused at the stage of framing charge merely on the ground that the material was not sufficient as the allegations in the complaint or first information were vague regarding cruelty. I do not think that this decision is of any assistance so far as the case before hand is concerned. There is no dispute that the allegations in the complaint or First Information Report regarding cruelty are sufficient for Court to frame charge against the accused for offence under Section 498-A of Indian Penal Code. In the case before hand, that stage is over and the Court has not only framed the charge but on evidence on record found the appellant guilty.

14. Now, bearing in mind the legal position, as stated above, let us consider whether the evidence on record is sufficient to establish the factum of cruelty as contemplated under Section 498-A r/w Explanation (a) thereto of Indian Penal Code. In the first place, accepting the statement in dying declarations Exhs. 39 and 34, we undoubtedly get the fact as to the cause of quarrel and harassment by the appellant to victim Sangita, as also the cause for Sangita to commit suicide. Even reading the statement in dying declarations in broader aspect, one does not find that there was any other cause for discord between the couple and there is no allegation, much less by the victim, that she was subjected to cruelty by the appellant at any time for any other reason. To make it clear, from what has been stated by her, the cause of harassment to her was her conduct of selling corns clandestinely in the shop to get money for herself. We are fortified by the evidence of witness Sunita (P.W. 4), who supported the prosecution when she has candidly stated in her evidence that Sangita was not going for labour work and on that count there used to be quarrel between them; Sangita was hot tempered and because of that she used to quarrel with appellant when appellant used to scold her as and when she was selling corns to get money to satisfy her needs. It is-significant to note that even witness Mangal (P.W. 5), who, in fact, did not support the prosecution did state in her evidence that there used to be quarrel between the appellant and Sangita from the beginning of their marital life. She did state that Sangita was not able to bear the quarrel and she was frustrated due to such quarrel, but nonetheless, she has not stated in her evidence that there was any other reason for quarrel. On the other hand, in her cross-examination by the defence, she stated that Sangita was hot tempered; Sangita did not work anything and it was Shamrao who used to go for work to earn their livelihood. She stated further that Sangita was lazy and never liked to go for work. Sangita used to become violent and vised to throw utensils when something went against her wish. To crown this all, the witness has stated that she used to get violent when Shamrao used to tell her to go for some work. So, with this evidence of witnesses Sunita (P.W. 4) and Mangal (P.W. 5), it stands clear that there was no other cause and reason for appellant to cause harassment to Sangita. If that is so then, even if it is accepted that there was some quarrel and also harassment to some extent on the part of appellant to Sangita, for which there could be no justification, in the nature of things, it is very difficult to hold that it was amounting to subjecting her to cruelty as contemplated under Section 498-A of Indian Penal Code, much less as per Explanation (a) thereto. This has to be viewed from this point of angle, that for this harassment or ill-treatment, as whatever it might have been, the victim hereself was to be blamed because of her peculiar conduct and nature. Therefore, even if we find that there was no justification for appellant to cause ill-treatment to her, when the harassment was invited by the victim herself because of her peculiar conduct and nature, in all probability, no intention could be attributed to the appellant, nor it could be said that the appellant was guilty of wilful conduct for causing harassment to the victim. In other words, as has been held by our High Court and even by the Apex Court in catena of decisions that such an affair of quarrel and also harassment that ensues therefrom, was of usual nature of wear and tear of marital life and, therefore, it cannot be termed as subjecting a married woman to cruelty, much less of a grave nature so as to drive the woman to commit suicide, or to cause grievous injury to her person, In that context, I have, in earlier part of the judgment, referred to the conduct of witness Hausabai (P.W. 2) and Savita (P.W. 3), who did not claim even that at any time during the span of 12 years Sangita complained them of any harassment or ill-treatment to her on any other cause, much less the cause on the basis of which the prosecution has come before the Court for charge of cruelty against the appellant. Therefore, I have expressed my surprise when both these witnesses did not support the prosecution. It is in this context, when these two near relations of victim Sangita were not prepared to tell for no reason, as tangible as it could be, about harassment and ill-treatment alleged to have been meted out to the victim, the claim of victim Sangita in her dying declarations, as also statement of witness Sunita (P.W. 4) even about the quarrel between the appellant and Sangita, appears to be far from truth. That apart, as stated earlier, even if that is accepted in a correct perspective, no blame could be attributed to the appellant, at least for causing cruelty to victim Sangita as laid down in Explanation (a) to Section 498-A of Indian Penal Code. Therefore, on the evidence on record, the prosecution has failed to prove that Sangita was subjected to cruelty by the appellant.

15. It is true that admittedly Sangita did commit suicide. It is also true, as laid down by the Apex Court and this Court in the decisions, that acquittal of accused under Section 498-A of Indian Penal Code does not necessarily in every case affect the charge against the accused for offence under Section 306of Indian Penal Code. It is needless to say that both the offences stand on different footing. But in the instant case, the cruelty contemplated or alleged by the prosecution was as per Explanation (a) to Section 498-A of Indian Penal Code. Therefore, Explanation (b) to Section 498-A of Indian Penal Code has no application so far as case before hand is concerned. If that is so then, failure of prosecution to prove cruelty as envisaged under Explanation (a) to Section 498-A of Indian Penal Code, has its own bearing on conviction of appellant for offence under Section 306 of Indian Penal Code, even though the factum of suicide committed by Sangita is admitted. But apart from that, having regard to the facts and circumstances of the case, as emerged from the evidence on record, and even accepting the evidence stated by me earlier, there is nothing to show that appellant in any manner instigated, incited or encouraged, much less aided, the act of committing suicide by Sangita. It is in this context, the nature of quarrel that used to ensue between them and consequent harassment therefrom to Sangita, which was admittedly invited by her on account of her conduct and nature, in addition to the fact that she was a woman of hot temperament, it is difficult to hold that the appellant could be attributed to intentional act in harassing Sangita for her to commit suicide. That apart, admittedly the appellant, who was present at the time when Sangita committed suicide by pouring kerosene on her person, did not do any positive act to instigate her to commit suicide, but made efforts to save her by extinguishing fire. This conduct exhibited by appellant stands militating against the guilty intention of a culprit and it shows that he did not intend that she should commit suicide. In such situation, the only inference that could be drawn, on the basis of the circumstances which prevailed at the time when the act of committing suicide was committed, is that it was her voluntary act to commit suicide which was result of her peculiar conduct and hot temperament which has to be described as a person of hyper-sensitivity and if that is so then, by no stretch of imagination, it can be said that the appellant was instrumental for Sangita’s committing suicide. It is very difficult to say that the appellant has abetted in any manner either by act or by omission the commission of suicide by Sangita. In this view of the matter, it has to be said that the Trial Court has committed an error in holding the appellant guilty for offence under Section 306 of Indian Penal Code.

16. In the result, I have found that the prosecution has failed to prove that appellant has committed offence under Sections 498-A and 306 of Indian Penal Code. The judgment and order of conviction and sentence for the said offences cannot be sustained. The appellant deserves to be acquitted. Hence the order.

17. The appeal is allowed. The judgment and order of conviction and sentence dated 1.6.2000, passed against the appellant by the learned II Additional Sessions Judge, Osmanabad, in Sessions Case No. 173 of 1999, is quashed and set aside. The appellant is acquitted and he be set at liberty, if not required in any other case. Fine amount, if any, paid by the appellant, be refunded to him.

18. Mr. M. K. Deshpande has-been appointed as an Advocate in this case and his professional fees is quantified at Rs. 1,000/-.

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