Ashok s/o Haribhau Moon vs State of Maharashtra

The appellant is aggrieved by the judgment and order

dated 28.05.2004 passed by the 3 rd Ad-hoc Additional Sessions

Judge, Wardha in Sessions Trial 78/2003, by and under which,

the appellant is convicted for offence punishable under Section

498-A of the Indian Penal Code ('' IPC '' for short) and is sentenced

to suffer rigorous imprisonment for three years and to payment of

fine of Rs.500/- and is further convicted for offence punishable

under Section 306 of the IPC and is sentenced to suffer rigorous

imprisonment for seven years and to payment of fine of Rs.1000/-.

The appellant is however, acquitted of offence punishable under

Section 304-B of the IPC.

Heard Shri C.R. Thakur, the learned counsel for the

appellant and Shri P.S. Tembhare, the learned Additional Public

Prosecutor for the respondent-State.

The prosecution case, as is unfolded during the trial,

is thus:

The marriage of deceased Sau. Sulekha and the

accused was solemnized in April, 2001. However, Sulekha was

compelled to leave the matrimonial home and to return to her

parental home within 2 to 3 months of the marriage in view of the

cruelty to which she was subjected by the accused.

Concededly, Sulekha hanged herself at her parental

house on 04.04.2003. An oral report Exh.27 was lodged by P.W.1

Udhav Laxman Kolhe on 04.04.2003 stating that the accused

subjected Sulekha to cruelty to coerce her to fulfill an unlawful

demand of Rs.50,000/-, that Sulekha was physically assaulted by

the accused who was habituated to consume liquor, that the

accused visited the parental house of Sulekha 3 to 4 times and

ill-treated her under the influence of liquor during the said visits

and that Sulekha disclosed to P.W.1 and his wife Asha Udhav

Kolhe P.W.2 that the accused had illicit relationship with his

sister-in-law which he was refusing to end. On the basis of the

said report, offence punishable under Section 498-A and 304-B of

the IPC and Section 3 and 4 of Dowry Prohibition Act was

registered at the Police Station Selu, District Wardha against the

accused.

The prosecution essentially and substantially relied on

the evidence of the father and mother of the deceased Sulekha,

Udhav Laxman Kolhe and Asha Udhav Kolhe who are examined as

P.W.1 and P.W.2 respectively and a suicide note Exh.53, to which

I shall refer to some in detail, at a later stage in the judgment.

P.W.1 Udhav Kolhe has deposed that the deceased

Sulekha cohabited with the accused at the matrimonial home for

hardly 2 to 3 months. The accused was demanding an amount of

Rs.50,000/- and threatened Sulekha that should the amount not

be given he would seek divorce. The accused, under the influence

of liquor was physically assaulting Sulekha. Sulekha told P.W.1

that she was beaten to coerce her to fulfill the unlawful demand

for money, is the deposition. P.W.1 further deposes that the

accused used to visit his house to demand money and the accused

assaulted Sulekha in the presence of P.W.1. The accused used to

threaten Sulekha of seeking divorce, should the money not be

paid, is the deposition. Prior to 2 to 3 months of the incident the

accused had visited the house and agricultural field of P.W.1, is

the deposition. P.W.1 has proved the report Exh.27.

In the cross-examination, the statement that prior to 2

to 3 months of the incident the accused visited the agricultural

field of P.W.1 is brought on record as an omission. P.W.1 denies

the suggestion that Sulekha was insisting for divorce from the

accused and that she was not willing to cohabit with the accused.

P.W.1 further denies the suggestion that there was a quarrel

between P.W.1 and Sulekha on the issue of she not being willing

to cohabit with the accused.

The mother of the deceased Sulekha, Asha Kolhe

(P.W.2) deposed that the accused was consuming liquor, was

demanding Rs.50,000/- and was threatening to seek divorce in

the event of non-payment of the said amount by the parents of

Sulekha. She has deposed that one to two months prior to the

incident, the accused visited her house, went to the field,

threatened Sulekha and demanded money and threatened to seek

divorce if the money is not paid.

In the cross-examination the defence has elicited

thus:

It is true that my husband was saying to her that my daughter should go to her matrimonial house. It is true that because my husband was insisting on my daughter to go to her matrimonial house there was quarrel between my daughter and my husband. I again say that the quarrel was with me also. She also stated that in case that she was compel to go to her husband''s house she would end her life. It is true that my daughter was a hot temper person.

The suicide note Exh.53, which is duly proved to be

in the handwriting of the deceased Sulekha, by the handwriting

expert Shri Bhalchand Shidhagauda Biradar (P.W.7) states that

the marital life is responsible for the death. The suicide note states

that the accused used to consume liquor and physically assault

Sulekha daily and used to declare that he would divorce Sulekha

but would not give up the relationship with the sister-in-law. It is

also stated in the suicide note that the accused used to ask

Sulekha to bring money from her father-P.W.1. In all fairness, the

learned counsel for the accused Shri Thakur did not seriously

dispute either authenticity of the suicide note. Shri Thakur would

however, submit that it is absolutely unclear as to when the

suicide note was penned.

Shri Thakur, the learned counsel would submit that

consumption of liquor and physically assaulting the wife would

not constitute cruelty within the meaning of Section 498-A of the

IPC. Shri Thakur invites my attention to the following observation

in the Division Bench judgment of this Court in Suresh s/o

Vithalrao Ekonkar Vs. State of Maharashtra reported in 2011 ALL

MR (Cri) 578 and in particular to paragraph 26 which reads thus:

Insofar as the conviction of the appellant/accused for the offence punishable under Section 498-A of the Indian Penal Code is concerned, the only evidence led by the prosecution is that of Taibai (P.W.2) and Sadanand (P.W.4). Their evidence only establishes that before the incident the accused used to come drunk and beat Jyoti. Even if this evidence is accepted, still the ingredients of Section 498-A of the Indian Penal Code are not made out by the prosecution. It cannot be said that the conduct of the accused was such as was likely to drive Jyoti to commit suicide or to cause grave injury or danger to the life, limb or health. Therefore, in our considered opinion, the conviction of the appellant/accused for the offence punishable under Section 498-A of the Indian Penal Code is unsustainable in law and as such the accused is liable to be acquitted for the said offence.

Shri Tembhare, the learned A.P.P. would submit in

rebuttal, that the observations of the Division Bench are to be read

and understood not in isolation but in the context of the factual

matrix of the case. The Division Bench could not have intended to

enunciate, as a statement of law that physically assaulting the wife

under the influence of liquor cannot constitute cruelty within the

meaning of Section 498-A of the IPC, is the submission. It is not

res integra, that the willful conduct constituting cruelty includes

wilful conduct as is likely to cause grave injury or danger to life,

limb or health (whether mental or physical) of the woman and

that mental health would include the emotional health and well

being of the woman, is the submission.

Shri Tembhare, the learned A.P.P. for the

respondent-States invites my attention to the judgment of the

Apex Court in State of Bengal Vs. Orilal Jaiswal and another

reported in (1994) 1 SCC 73 is to buttress the submission that

assaulting the wife under the influence of liquor is cruelty.

Concededly, the death is within two years of the

marriage. Shri Tembhare, submits that since the prosecution has

established that the deceased was subjected to cruelty within the

meaning of Section 498-A of IPC, the statutory presumption under

Section 113-A of the Indian Evidence is activated. It must be

borne in mind that the court is not obligated to invoke the

statutory presumption under Section 113-A, which is obvious from

the employment of the expression ''may presume'' in contradiction

with the expression ''shall presume'' employed in Section 113-B of

the Indian Evidence Act.

Having given due consideration to the evidence on

record, in my opinion, offence punishable under Section 306 of

the IPC is clearly not established. Abetment is defined in Section

107 of the Indian Penal Code thus:

Abetment of a thing.-- A person abets the doing of a thing, who--

First.-- Instigation 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 wilful misrepresentation, or by wilful 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.

The second and the third part of the definition is

clearly not attracted. The prosecution case is that the accused

instigated the deceased to commit suicide. Instigation, would be

wilful act or omission which, to the knowledge of the accused,

would in every likelihood drive the woman to commit suicide. It is

axiomatic, that implicit in instigation is an element of mens rea.

The act or the omission, to constitute instigation, must be done

with the intention or knowledge that such act or omission would

goad or urge or drive the woman to a stage or situation where she

is left with no option but to take the extreme step.

An important test which must be applied by the court

is the proximity test. It would be necessary for the prosecution to

establish a live link between the act or omission and the suicide.

The cause and effect relationship must be demonstrated.

The proximity test is not a straight jacket formula. The court is

obligated to decide, on the facts of the case, whether the conduct

of the accused or the cruelty which is alleged is proximate enough

to the suicide, to enable the court to record a finding that the

conduct or cruelty must have in every probability disturbed the

mental equilibrium of the deceased.

The deceased, indubitably, was residing with her

parents since one and half years prior to the death. She stayed

with the accused for hardly three months. The case of the

prosecution is that even after the deceased started residing with

her parents, the accused used to visit her parental home and

threatened her with divorce should she not return to the

matrimonial home with money. Even if the entire evidence is

taken at face value, the last such visit by the accused was 2 to 3

months prior to the incident. The evidence on record, is not

sufficient to infer that during visits the accused subjected the

deceased to cruelty of such nature or extent as would persuade

her to end her life. That apart, the proximity test is not satisfied.

I am not persuaded to hold that even if the prosecution version

about what transpired when the accused visited the parental

house of the deceased two months prior to the incident, is taken

at face value, the mental equilibrium of the deceased would be

disturbed to such an extent as would compel her to take the

extreme step. I have reproduced supra, the portion of the

cross-examination of P.W.2 Asha Kolhe, the mother of the

deceased, which would suggest that the parents of the deceased

were forcing her to return to the matrimonial home and the

deceased was so reluctant that she threatened to commit suicide if

forced to return to the matrimonial home. The suicide note, as is

pointed out by the learned counsel for the accused is not dated.

However, since the seizure of the suicide note from the blouse of

the deceased is irrefutable, and to be fair to the learned counsel

for the accused, no submission is advanced questioning the

seizure, the absence of date is not really significant. The suicide

note indeed blames the accused for consumption of liquor and

assault, of being in a relationship with his sister-in-law and for

asking the deceased Sulekha to bring money from parents.

The contents of the suicide note, however, do not exclude the

possibility of the deceased Sulekha having taken the extreme step

since she was being pressurized by her parents to return to the

matrimonial home.

I am not inclined to hold that the prosecution has

established the offence punishable under Section 306 of the IPC

beyond reasonable doubt. The accused deserves to be acquitted of

offence punishable under Section 306 of the IPC.

In view of the acquittal of the accused under Section

306 of the IPC, I am left to deal with the offence punishable under

Section 498-A of IPC. The cause of death or the circumstances

leading to the transaction which resulted in death, is no longer in

issue. The verbal or written statements of the deceased Sulekha

are not admissible under Section 32(1) of the Indian Evidence Act

since the cause of death is not an issue. Neither the suicide note

Exh.53 nor what is narrated by the deceased to her parents is

admissible in evidence. It would be apposite to refer to the

judgment of the Apex Court in Gananath Pattnaik Vs. State of

Orissa reported in (2002) 2 SCC 619. The relevant observations of

which judgment read thus:

Another circumstance of cruelty is with respect to taking away of the child from the deceased. To arrive at such a conclusion, the trial court has referred to the statement of PW5, who is the sister of the deceased. In her deposition recorded in the court on 4-5-1990 PW5 had stated:

"Whenever I had gone to my sister, all the times she was complaining that she is not well treated by her husband and in-laws for non-fulfilment of balance dowry amount of a scooter and a two-in-one."

and added:

"On 3-6-1987 for the last time I had been to the house of the deceased i.e. to her separate residence. Sworna, Snigdha, Sima Apa, Baby Apa accompanied me to her house on that day. At that time the deceased complained before us as usual and added to that she said that she is being assaulted by the accused nowadays. She further complained before us that the accused is taking away the child from and her, and that her mother-in-law has come and some conspiracy is going against her (the deceased). She further told that ''mate au banchei debenahin''.

Such a statement appears to have been taken on record with the aid of Section 32 of the Indian Evidence Act at a time when the appellant was being tried for the offence under Section 304-B and such statement was admissible under Clause (1) of the said section as it related to the cause of death of the deceased and the circumstances of the transaction which resulted in her death. Such a statement is not admissible in evidence for the offence punishable under Section 498-A of the Indian Penal Code and has to be termed as being only a hearsay evidence. Section 32 is an exception to the hearsay Rule and deals with the statements or declarations by a person, since dead, relating to the cause of his or her death or the circumstances leading to such death. If a statement which otherwise is covered by the hearsay rule does not fall within the exceptions of Section 32 of the Evidence Act, the same cannot be relied upon for finding the guilt of the accused.

The following observations of the Apex Court in

Kantilal Martaji Pandor vs. State of Gujarat and another reported

in (2013) 8 SCC 781 are also relevant:

The question that we have, therefore, to decide is whether the Court could have arrived at this finding that the appellant has starved the deceased and committed various acts of mental cruelty towards the deceased only on the basis of the contents of the letter dated 26.03.1992 written by the deceased to the Police Station. The letter written by the deceased on 26.03.1992 could be relevant only under Section 32(1) of the Evidence Act, 1872, which provides that a statement, written or verbal, of relevant facts made by a person who is dead, is relevant when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question. The High Court in the present case has already held that the appellant was not guilty of abetting the suicide of the deceased and was, therefore, not guilty of the offence under Section 306, IPC . As the cause of the death of the deceased is no more in question in the present case, the statements made by the deceased in the letter dated 26.03.1992 to the Police Station cannot be taken to be proof of cruel acts committed by the appellant for the purpose of holding him guilty under Section 498-A, IPC .

For taking this view, we are supported by the decision of this Court in Inderpal v. State of m.P. In this case, Inderpal was charged and tried for the offence under Section 306, IPC, and convicted by the trial court for the said offence of abetment of suicide. In the appeal filed by Inderpal, the High Court found that the offence under Section 306 IPC, was not made out as it could not be held that death of the deceased was due to commission of suicide, but the High Court held the appellant guilty of the offence under Section 498-A, IPC . This finding of the High Court was based on the evidence of the father, mother, sister and another relative of the deceased who deposed on the basis of inter alia the two letters (Exhibits P-7 and

P-8) written by the deceased Damyanti that Inderpal, her husband, had subjected her to beating. This Court found that apart from the statement attributed to the deceased, none of the witnesses had spoken of anything which they had seen directly and the question that this Court had to decide was whether the statement attributed to the deceased could be used as evidence including the contents of Exts.P-7 and P-8 and this Court held that the contents of Exts. P-7 and P-8 written by the deceased could not be treated as proof of the acts of cruelty by Inderpal for the purpose of offence under Section 498-A IPC. The reasons given by this Court in paragraph 7 of the judgment as reported in the SCC are as follows (Inderpal case, SCC p. 739):

"7. Unless the statement of a dead person would fall within the purview of Section 32(1) of the Evidence Act there is no other provision under which the same can be admitted in evidence. In order to make the statement of a dead person admissible in law (written or verbal) the statement must be as to the cause of her death or as to any of the circumstance of the transactions which resulted in her death, in cases in which the cause of death comes into question. By no stretch of imagination can the statements of Damyanti contained in Exhibit P-7 or Exhibit P-8 and those quoted by the witnesses be connected with any circumstance of the transaction which resulted in her death. Even that apart, when we are dealing with an offence under Section 498-A IPC disjuncted from the offence under Section 306 IPC the question of her death is not an issue for consideration and on that premise also Section 32(1) of the Evidence Act will stand at bay so far as these materials are concerned."

In view of enunciation of law by the Apex Court, the

verbal and written statements of the deceased Sulekha must be

kept out of consideration as inadmissible. In so far as direct

evidence is concerned, P.W.1 Udhav Kolhe has deposed that when

Sulekha was residing in his house, the accused was visiting and

asking P.W.1 whether the money could be arranged. P.W.1 states

that he witnessed the accused asking Sulekha whether she has

taken the money from P.W.1. The accused beat Sulekha in the

presence of P.W.1, is the deposition. P.W.1 has also spoken of the

threat of divorce issued in his presence. He further states that two

months prior to the incident the accused had come to his field and

house. P.W.1 has however, not testified as to what transpired

when the accused is said to have visited his house and the field.

The evidence that the accused had visited the field of

P.W.1 2 to 3 months prior to the death of Sulekha, is shown to be

an omission qua the F.I.R. which refers only to visit to the

residence. The evidence that the accused used to beat Sulekha in

the presence of P.W.1 when the accused visited estranged

Sulekha, is not credit worthy. P.W.2 Asha, the mother of the

deceased, does not speak of the accused beating her during his

visits to village Nanbardi. Her evidence is that the accused visited

village Nanbardi, came to the house of his in-laws, then went to

the field and threatened the deceased Sulekha. This evidence is

again hearsay since the evidence is based on what is conveyed by

Sulekha. The evidence of P.W.2, who is the only witness to prove

the cruelty, other than P.W.1 Udhav Kolhe, does not take the case

of the prosecution any further.

It is trite law, that a conduct which is cruel in the

context of matrimonial law may not constitute cruelty for the

purpose of Section 498-A of the IPC. The statutorily defined

cruelty must be of a graver nature and extent than the cruelty

which is sufficient to be proved to obtain relief under the

matrimonial law. The cruelty must be proved by unimpeachable

evidence. Vague and general allegations of demand and

ill-treatment, bereft of particulars do not constitute proof of

cruelty. Ordinarily, the conduct must be persistent and

continuous. The proximity test is also of relevance. An aberration

or stale incident cannot be pressed into service by the prosecution

to prove cruelty. Demand per se is not sufficient to constitute

cruelty unless the demand is accompanied by ill-treatment or

harassment.

The evidence on record, if tested on well recognized

parameters, is woefully short of the requisite standard. In this

view of the matter, the accused is also entitled to be acquitted for

offence punishable under Section 498-A of the IPC.

In the result, I pass the following order:

[i] The judgment and order impugned is set aside.

[ii] The accused is acquitted of offence punishable

under Section 306 and 498-A of IPC.

[iii] The bail bond of the accused shall stand

discharged.

[iv] Fine paid by the accused, if any, shall be

refunded.

[v] The appeal is allowed.