Bombay High Court
Vithal S/O Baliram Dhamne And Ors. vs The State Of Maharashtra on 31 July, 1995
Equivalent citations: 1996 (1) BomCR 151, (1995) 97 BOMLR 429
Author: S Dani
Bench: S Dani

JUDGMENT S.S. Dani, J.

1. These three appellants – accused challenge the order dated 13-3-1990 of the Additional Sessions Judge, Hingoli in Sessions Case No. 40 of 1990 holding them guilty of offences under section 306 read with section 34, Indian Penal Code and sentencing appellant – accused No. 1 – Vithal – to suffer rigorous imprisonment for 3 years and a fine of Rs. 100/-, in default, rigorous imprisonment for one month and the appellants accused Nos. 2 and 3 to suffer rigorous imprisonment for one year and a fine of Rs. 50/- each, in default, rigorous imprisonment for 15 days; and, under section 498-A read with section 34 I.P.C. sentencing the appellant – accused No. 1 Vithal to suffer rigorous imprisonment for one year and a fine of Rs. 50/-, in default, rigorous imprisonment for 15 days and the appellants accused Nos. 2 and 3 to suffer rigorous imprisonment for three months each and a fine of Rs. 25/- each, in default, rigorous imprisonment for 10 days each.

2. The facts leading to the arrest and trial of these appellants-accused can be stated thus : Deceased Nanda, the daughter of P.W. 1 Maroti Gyanuji (Exh. 8) and P.W. 2 Laxmibai Maroti (Exh. 9) and sister of P.W. 3 Dilip Maroti (Exh. 10) and P.W. 4 Mamta Maroti (Exh. 11), was given in marriage to appellant-accused No. 1 Vithal, son of appellants-accused Nos. 2 and 3. The marriage was solemnised four years prior to December, 1988. After the marriage Nanda started residing with these appellants at village Warud Chakrapan, Taluka Hingoli, District Parbhani and visited her parent’s house at village Sengaon for Akhadi festival and stayed with them for few days. It is alleged that during this stay she complained that she was disliked by all the 3 accused as she was not fair in look and was unable to do the household work. She also disclosed about beating to her by her husband on this count. She was, however, pacified and advised to bear the harassment for some period and she accordingly returned back to these accused. The illtreatment, however, did not recede. The father of Nanda then saw these accused with some villagers including P.W. 8 Manohar Sakharam (Exh. 16) and also approached P.W. 7 Sakharam Laxman (Exh. 15), a cousin of accused No. 3, and apprised the situation. The accused, however, did not change their attitude in spite of the intervention of Sakharam Laxman. P.W. 3 Dilip Maroti, brother of Nanda, visited her house to bring her for Diwali festival but the accused refused to send Nanda with him and complained about her look and inability to do the household duties. However, deceased Nanda reached her parents alongwith the brother of accused No. 1 and stayed for the festival during which she reiterated about the illtreatment and harassment. After the festival, P.W. 3 Dilip took back Nanda to the house of these accused but she was not allowed and as such, Nanda returned back and started staying with her parents. The incident took place on 7-12-1988 and it is alleged that while the parents and other members were busy with agricultural operations in the field, Nanda left the house on informing P.W. 4 Mamta (Exh. 11), her sister, that she was going for the nature’s call. Nanda, however, did not return back and the parents then made enquiries but in vain. Ultimately the parents noticed a pitcher lying near their well in survey No. 60 and noticed a portion of saree of Nanda flouting on the surface of the well water. The police machinery was then informed at about 10 a.m. and Accidental Death Entry No. 29/88 was registered. P.W. 10 Sakharam Krishnaji (Exh. 19) then carried out the inquiry and effect the inquest (Exh. 14) over the dead body and also spot panchanama (Exh. 20). The dead body was then sent to the hospital for post mortem examination and P.W. 9 Dr. Harihar Deshpande (Exh. 17) effected autopsy. On recording the statements and on completion of other necessary investigation all the three accused were chargesheeted for abating the commission of suicidal death by Nanda and also for subjecting her to cruelty and illtreatment, offences under sections 306 and 498-A, both read with section 34 I.P.C. and all the three accused stood their trial in Sessions Case No. 40 of 1989 before the Sessions Court at Hingoli. On appreciation of the evidence on record the trial Court held the death of Nanda as suicidal and further held all the three accused guilty of both the offences and by the impugned order dated 13-3-1990 convicted and sentenced them as aforesaid. Hence this appeal.

3. So far as the question of suicidal death is concerned, it is to be noted at the inception that the medical evidence adduced by P.W. 9 Dr. Harihar Deshpande (Exh. 17) falls too short to sustain such a finding. As per the evidence of the medical officer, the cause of death was auphyxia due to drowning. It is further admitted by the medical officer that even though viscers was preserved it was not send to chemical analyser. As such, there is no report of the C.A. in the case at hand and there is no positive medical opinion about the suicidal death of Nanda. Further it may be noted that admittedly deceased Nanda died while she was at the parents’ house at village Sengaon, Taluka Hingoli. Further it may be noted that the complaint in this case (Exh. 24) has been filed not by the parents or any relations but by the P.W. 10 Sakharam Waghmare (Exh. 19), the Investigating Officer. As per the said complaint, it transpired while making the inquiry in respect of the accidental death that the deceased used to disclose about the illtreatment and the parents had requested these accused to treate Nanda properly. It is further mentioned in the complaint that as she died because of a fall in the well, it was a suspicion of the parents that she had committed the suicidal death. It is also pertinent to note that as per the prosecution story, Nanda left the parental house at about 6 p.m. on that day while P.W. 4 Mamta Maroti (Exh. 11), the younger sister of the deceased, was in the house. It is in her evidence, that her sister Nanda did not disclose anything before she left the house. Further as per the evidence, P.W. 1 Maroti the father, P.W. 2 Laxmibai the mother, P.W. 3 Dilip – the brother and P.W. 4 Mamta the sister, do not even whisper in respect of any disturbed mental condition or any depression so as to force Nanda to commit the sucide. The panchanama of the scene of offence (Exh. 20) proves that there are steps to the well in question and they all were uneven and in dilapidated condition. Further it may be noted that P.W. 1 Maroti Gyanuji, her father, admits in his evidence at Exh. 8 that on the next day morning he left the house at 7 a.m. to file report and had taken with him a written application and he was accompanied with the Police Patil. He further admits that in his report he only stated that his daughter Nanda had fallen in the well and the investigation be carried out. It is therefore clear that the father of the deceased did not allege the suicidal death while filing the report and treated her death as accidental. In view of this, the possibility of an accidental death cannot be ruled out and the prosecution, therefore, failed to prove the suicidal death of Nanda beyond reasonable doubt. The affirmative finding of the trial Court on point No. 1 cannot therefore be sustained in the absence of the cogent evidence to prove the suicidal death of Nanda. The alleged offence under section 306I.P.C. will also fall on the ground.

4. So far as the alleged offence of illtreatment and cruelty under section 498-AI.P.C. is concerned, a useful reference may be made to the different authorities in this connection before the evidence adduced by the prosecution witnesses is considered and appreciated. In the case of Veerulu and another v. The State of Andhra Pradesh, 1988(3) Crimes 549 it is ruled that the standards of proof of cruelty are higher in degree in criminal law than in civil and the intention or mens rea on the part of one spouse to injure the other is an essential element in criminal law and the conduct of cruelty has to be proved beyond all reasonable doubt. It is further held that as per explanation appended to section 498-AI.P.C. the adjuctive ‘wilful’ qualifying the word ‘conduct’ contemplates obstinate and deliberate behaviour on the part of the offender for it to amount to ‘cruelty’ and the term “wilful conduct’ is thus explicit in character. In the case of Sarla Prabhakar Waghmare v. State of Maharashtra, 1990 Cri.L.J. 407, this Court held that it is not every harassment or every type of cruelty that would attract section 498-A. It must be established that beating and harassment was with a view to force wife to commit suicide or to fulfil illegal demands of husband and in-laws. In the case of Sarojakshan Shankaran Nayar v. State of Maharashtra, 1995 Cri.L.J. 340, the Division Bench of this Court ruled that the expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life and to decide the question of cruelty the relevant factors and matrimonial relationship between the husband and wife, their cultural interaction in their daily life which dominate the aspect of cruelty. It, therefore, comes to this that the alleged act becomes cruelty under section 498-AI.P.C. if it falls within the four corners of explanation (a) or (b) and as such, it is not every harassment or conduct of cruelty that would attract penal provision. The cruelty, therefore, has to be with a view as specified in the said explanation. It is thus necessary for the prosecution to prove by convincing evidence that the act on the part of the accused was positive and of such a degree that the direct result was none other than the commission of suicide and the alleged conduct or harassment was of such a nature so as to drive a woman to commit suicide or with a view to fulfill illegal demands. Keeping in view of this it is necessary to scrutinise and appreciate the evidence in the case at hand.

5. The prosecution has adduced the evidence of ten witnesses to prove the alleged offences against the accused and out of these, P.W. 6 Narayan Ramchandra (Exh. 13) is the panch for the recovery of the dead body while P.W. 9 – Dr. Narihar Deshpande (Exh. 17) is the medical officer and P.W. 10 Sakharam Waghmare (Exh. 19) is the police officer. Out of the remaining witnesses, P.W. 7 Sakharam Laxman Dhamne (Exh. 15), a cousin of accused Baliram, has refused to support the story of the prosecution in respect of the alleged harassment and illtreatment.

6. P.W. 1 Maroti Gyanuji and the P.W. 2 Laxmibai Maroti are the parents of the deceased while P.W. 3 Dilip and P.W. 4 Mamta are the brother and sister of the deceased while P.W. 5 Vacchalabai (Exh. 12) is the neighbour of the complainant Maroti. It is the general evidence of these witnesses that whenever Nanda used to visit the parental house she was complaining about the illtreatment and harassment by these accused and it was disclosed that the accused used to say to her that she was unfair to look and was not knowing the domestic work. It is, however, brought in the evidence of these witnesses that the disclosure about the ill treatment was two years after the marriage. Even though it is alleged by the parents that the illtreatment was on account of unfair look of the deceased, P.W. 1 Maroti Gyanuji – father as well as P.W. 2 Laxmibai the mother admit that the marriage between Nanda and accused No. 1 was fixed and solemnized after approval. They are specific in the evidence that the marriage was solemnized after the consent of the accused for the marriage was granted. The mother of the deceased goes a step further and avers that her daughter Nanda was fair if compared to accused Vithal and she was therefore approved by the accused after seeing her. The alleged ground for the illtreatment, therefore falls on the ground. It is then alleged by the prosecution that the illtreatment was because of her inability to do the house hold work. In respect of this, it is to be noted that as per the evidence of the parents, Nanda was brought to their home every now and then and in spite of this, the disclosure in respect of illtreatment was only at the time of the Akhadi festival and secondly prior to her death. The father admits that he at no time made any complaint about the illtreatment to his daughter. Further it may be noted that P.W. 5 Vacchalabai, the neighbour of the complainant, has also admitted the position that the complaint of illtreatment was made by Nanda for the first time 4 years back and it was just prior to Diwali of her death. It is not in dispute in that the villages of the parents of the deceased and the accused are separated by a distance of only 3 miles and, as per the evidence, it takes less than half an hour for the said travel.

7. The prosecution has adduced the evidence of P.W. 3 Dilip, the brother of the deceased, and, as per his evidence, he himself alongwith his father and P.W. 6 Manohar Sakharam and others had gone to the house of the accused and requested not to harass his sister Nanda. As per his evidence, Nanda was not allowed by these accused to enter in the house and as such she returned back to her parents and stayed there till her death. The witness, however, admits not to have stated in his statement before police in respect of his visit to the house of the accused. Further, even if the witness avers that he had accompanied his father Maroti to the house of the accused, this stands disproved by the evidence of P.W. 1 Maroti as well as P.W. 8 Manohar as none of these witnesses involves Dilip. Further, the witness Dilip adduced the contrary evidence than his own father when he alleges that Nanda was not allowed to enter in the house on the count that she was not fair to look. It is also to be noted that though the witness Dilip styles himself to have taken Nanda back to his house, his testimony runs contrary to the evidence of P.W. 8 Manohar Sakharam, who deposed that Dilip only left Nanda to the house of the accused and he himself alongwith Dilip went to P.W. 7 Sakharam Laxman to request him to advise accused to treat deceased Nanda properly and when the accused did not listen to the advice he brought Nanda back. The evidence of P.W. 1 Maroti Gyanuji, the father of the deceased, in this connection also runs contradictory inasmuch as he avers that when he alongwith Manohar reached the house of accused they were absent and as such, they left Nanda in the house of the accused and returned back. The prosecution has also adduced to evidence of the younger sister of Nanda, namely, P.W. 4 Mamta (Exh. 11) and as per her evidence just prior to the incident Nanda left the house without speaking anything to her and she herself does not know as to why Nanda committed suicide. The next witness of the prosecution is P.W. 5 Vacchalabai, a relation of deceased Nanda and a neighbour of the complainant Maroti. According to her evidence, Nanda disclosed about the illtreatment and this was only once at the time of Diwali of her death though Nanda used to visit her parents and reside with them for a month or so. The evidence, as discussed above, is therefore insufficient to prove any illtreatment and that it was of such a nature so as to drive Nanda to commit suicidal death. It may be noted that it is not the case of the prosecution that there was any demand of any article or money to the deceased or her parents and as such, the case at hand does not fall within the Explanation (b) to section 498-A I.P.C. In the absence of the cogent evidence in respect of the suicidal death as well as to prove the nature of illtreatment as sufficient to drive her to commit the suicidal death, the case is also not covered by Second Explanation (a) to the said section. Disagreeing with the views and the reasonings of the trial Court. I, therefore, hold that neither the offence under section 306 nor under section 498-AI.P.C. can be said to have been proved against any of these accused. The impugned order of conviction and sentence cannot be sustained and all the appellants-accused are required to be acquitted.

8. In the result, Criminal Appeal No. 118 of 1990 succeeds. The order dated 13-3-1990 of the Additional Sessions Judge, Hingoli in Sessions Case No. 40 of 1989 holding the appellants-accused guilty of offences under section 306 read with section 34 I.P.C. and sentencing the appellant-accused No. 1 to suffer rigorous imprisonment for three years and a fine of Rs. 100, in default, rigorous imprisonment for one month and the appellants-accused Nos. 2 and 3 to suffer rigorous imprisonment for one year and a fine of Rs. 50/- each, in default, rigorous imprisonment for 15 days each, and, holding guilty of the offence under section 498-A read with section 34I.P.C. and sentencing the appellant-accused No. 1 to suffer rigorous imprisonment for one year and a fine of Rs. 50/- in default, rigorous imprisonment for 15 days and the appellants-accused Nos. 2 and 3 to suffer rigorous imprisonment for three months and a fine of Rs. 25/- each, in default, rigorous imprisonment for 10 days each, is hereby quashed and set aside and all the three accused stand acquitted of the offences with which they stood charged. Their bail bonds stand cancelled and the fine, if paid, be refunded.

 

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