Shivram s/o Ganpat Gajbe vs State of Maharashtra

The appellant is aggrieved by the judgment and order dated 19.07.2004 passed by the 3rd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial 725/2001, by and under which, the appellant (hereinafter referred to as "the accused") 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 two years and to payment of fine of Rs.1000/- and is further convicted for offence punishable under section 306 of the IPC and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.2000/-. The co-accused

one Dhanraj Mahadeo Gajbe is however, acquitted.

Heard Shri P.M. Shukla, the learned counsel for the appellant and Shri A.V. Palshikar, the learned Additional Public Prosecutor for the respondent/State.

The case of the prosecution, as is unfolded during the trial, is thus:-

The accused and the deceased Usha entered into matrimonial alliance six years prior to the unfortunate incident.

The accused and Usha had two children and one son from the wedlock. Indubitably, Usha committed suicide on 12.09.2001 by jumping into a well along with her three children. Usha and her two children Saurabh aged 5 years and Ku. Pratignya aged 3 years died and the seven month old daughter miraculously survived.

Initially, accidental death inquiry was registered under section 174 of the Code of Criminal Procedure on the basis of report Exh.34 lodged by one Sarangdhar Keshavrao Deshmukh.

The complainant Shantabai Gharat (P.W.5) the mother of the deceased lodged a report on 14.09.2001 at Hingna Police Station, the gist of which that her daughter Usha was forced to commit suicide due to the ill-treatment meted out by the accused inter alia to coerce Usha to fulfill an unlawful demand of Rs.40,000/- for construction of house. On the basis of the report Exh.36 offence punishable under section 498-A, 306 read with section 34 of IPC was registered at the Hingna Police Station.

Investigation ensued and upon completion thereof charge-sheet was filed in the Court of Judicial Magistrate First Class Court, 10 th Court, Nagpur, who committed the case to the Sessions Court.

The learned Sessions Judge framed charge under section 498-A, 306 read with section 34 of IPC, the accused abjured guilt and claimed to be tried in accordance with law.

The trend and tenor of the cross-examination would suggest that the defence is of total denial.

The prosecution examined seven witnesses including P.W.1 Sunita Mangare, P.W.2 Asha Dhone, P.W.3 Vatsalabai Sawsakale, P.W.4 Sarangdhar Deshmukh, P.W.5 Shantabai Gharat, P.W.6 Shamrao Gharat and P.W.7 Haribhau Rajaramji Parteki. The prosecution is substantially relying on the evidence of P.W.2 Asha Dhone, P.W.3 Vatsalabai, P.W.5 Shantabai Gharat and P.W.6 Shamrao Gharat to prove that the accused subjected the deceased Usha to cruelty within the meaning of explanation (a) and (b) of section 498-A of IPC. The suicide is irrefutably within seven years of the marriage, with the result, that if the prosecution is successful in establishing that the deceased was subjected to cruelty, this court in its discretion would be entitled to draw presumption under section 113-A of the Indian Evidence Act that the suicide had been abetted by the accused. However, unlike section 113-B, the words employed in section 113-A are "may presume" which implies that it is not obligatory or mandatory for the court to invoke the presumption, and having regard to the circumstances, the court may refrain from taking the aid of the presumption.

P.W.1 Sunita Mangare was a tenant in the house of

the accused. She has deposed that at 05:30 to 06:00 p.m. on 12.09.2001 the deceased told her that she is going to the hospital along with her children since one of the children needed medical treatment. In the cross-examination, it is extracted that the accused has two shops, one situated in his house and the other in Kasba locality. The accused used to attend to the shop at Kasba and used to leave in the morning at 07:00 a.m. and the deceased used to look after the shop situated in the house. P.W.1 states that the relations between the deceased Usha and accused were good and that on the day of the incident or prior to the incident there was no quarrel between the deceased and accused. P.W.1, in effect, has supported the defence.

P.W.2 Asha Dhone is the elder sister of deceased

Usha. Her deposition is that the accused and the Usha co-habited well for the initial period of one year of the marital life. She states that thereafter the accused started construction work of his house and used to ask the deceased to bring money from her parents and used to ill-treat her. She states that on the instigation of the co-accused Dhanraj Mahadeo Gajbe, accused used to beat the deceased Usha. She states that then she was residing in Nagpur

and three years prior to the recording of the evidence she shifted residence to Bhusawal. Deceased Usha used to visit her when she was residing in Nagpur and used to disclose the ill-treatment, is the deposition. She states that once her father gave Rs.10,000/- to the accused. She states that five months prior to the incident she visited the deceased and saw the accused quarreling with and abusing the deceased.

In the cross-examination, she denies that there was blood relationship between her family and that of the accused and that the accused did not wish to marry deceased Usha. She admits that marriage was performed with the consent of both the families and that there was no dispute at the time of marriage. She admits that the accused has two shops although she denies the suggestion that her deceased sister was looking after the shop situated in the

house. In the cross-examination, the statement that after one year the accused started construction of his house and used to insist that the deceased should bring money from her parents is shown as an omission. The statement that at the instigation of the co-accused Dhanraj Mahadeo Gajbe the accused used to abuse and beat the deceased is again an omission. The statement that five months prior to the date of the incident P.W.2 visited the house of

the deceased and saw the accused quarreling with and abusing the deceased is again a proved omission. She admits that her sister was visiting the parental house and that the family of her sister was also on visiting terms with the accused. She denies the suggestion that the deceased Usha was hot tempered and used to pick up quarrel on trivial issue.

P.W.3 Vatsalabai, whose statement is recorded belatedly on 10.10.2001, has deposed that the deceased Usha used to disclose to her that the accused used to demand money and used to beat her. She states that at the time of Rakhi festival prior to her death it was disclosed by the deceased Usha that accused demanded Rs.40,000/- for construction of house. P.W.3 deposed that the father of deceased Usha borrowed Rs.4000/- from her and after arranging Rs.10,000 he gave Rs.14,000/- to the accused. She states that one and half month thereafter the incident occurred.

In the cross-examination, it is brought on record that the statement that the deceased disclosed that the accused demanded Rs.40,000/- for construction of house is an omission.

The statement that the father of the deceased gave Rs.14,000/- to the accused after borrowing Rs.4000/- from P.W.3, is again an omission.

P.W.5 Shantabai, the mother of the deceased is the complainant. She has deposed that after marriage her daughter used to come to her parental house and used to disclose that the accused was insisting to bring Rs.40,000/- from her parents for construction of house. She has deposed that when she visited the house of the accused for the naming ceremony of the first child, accused assaulted her daughter by stick and gave a kick blow on a trivial issue of the quantity of mutton cooked for the guests falling

short. She has deposed that eight days after the said incident her daughter came to her parental house asking for money and since her father did not have the money she was sent back. She states that thereafter her daughter came with her two sons, resided at her house for 2 to 3 days and was given Rs.10,000/- by her father.

She states that her deceased daughter used to narrate that she will commit suicide due to the ill-treatment meted out by the accused.

In the cross-examination, P.W.5 admits that there was no demand of money or article made by the accused at the time of marriage.

She admits that the accused had two shops although she denies the suggestion that her deceased daughter was looking after the shop situated at her house. She admits that when she visited the house of the accused she was treated well. She denies the suggestion that her daughter was hot tempered and was treated for some mental issues. She denies the suggestion that her deceased daughter did not behave properly with the accused.

The statement that in the marriage the accused demanded money and there was a quarrel on the issue is an omission. The statement that after the marriage the deceased used to come to her house and used to disclose the ill-treatment, is again an omission.

The incident of assault with stick and kick blow on the issue of the quantity of non-veg food falling short, is again an omission.

The statement that her deceased daughter was given Rs.10,000/- is again an omission. However, it must be borne in mind that some omissions are only qua the statement recorded under section 161 of the Criminal Procedure Code. In the First Information Report dated 14.09.1991, the incident of the quantity of non-veg food falling short and the assault with stick is disclosed.

The demand of Rs.40,000/- for construction of house is also disclosed, although in the First Information Report it is stated that

the disclosure of the demand of Rs.40,000/- was made by deceased Usha when she along with her two children visited her parental house. It is also stated in the F.I.R. that her husband took Rs.10,000/- to give to the accused and reached Usha to her matrimonial house.

P.W.6 Shamrao Gharat, is the father of the deceased Usha who has deposed that there was a quarrel on the issue of dowry in the marriage. He states that Usha used to come after 2 - 3 months and used to disclose that the accused used to demand dowry and on her failure to bring the dowry used to beat her.

P.W.6 has deposed that accused demanded Rs.40,000/- for construction of house, he was having only Rs.10,000/- and therefore, after borrowing Rs.4000/- from neighbor Vatsalabai gave accused Rs.14,000/-. He has referred to the incident of the quantity of non-veg preparation falling short.

In the cross-examination, P.W.6 admits that there was no demand of dowry in the marriage. P.W.6 admits that deceased Usha visited her parental house at least on ten occasions till her

death. The statement that in the marriage itself there was a quarrel in the issue of dowry, is an omission. The statement that

the deceased Usha disclosed that she was beaten by the accused on the issue of dowry, is again an omission. The statement that he borrowed Rs.4000/- from Vatsalabai and gave Rs.14,000/- to the accused, is an omission. The incident of the non-veg preparation falling short, is an omission. The statement that whenever the family members used to visit accused he was not treating them well, as an omission. The most vital admission extracted reads

thus:

It is true that the accused No. 1 did not demand money for construction of house.

P.W.7 is the Investigating Officer. In the

cross-examination, it is proved that the statement of P.W.2 Asha Dhone that accused was used to ask the deceased to bring money for construction of house is proved as omission. The omission in the evidence of P.W.3 Vatsalabai that at the time of Rakhi festival the deceased disclosed the demand of Rs.40,000/- for construction of house is duly proved to the limited extent that the disclosure was made on the occasion of Rakhi festival.

The statement in the evidence of P.W.3 Vatsalabai that after borrowing Rs.4000/- from her P.W.6 paid Rs.14,000/- to the accused is proved as omission. The statement in the evidence of P.W.5 Shantabai that the accused demanded money in the marriage and quarrel is proved to be an omission. The statement in the evidence of P.W.6 Shamrao Gharat that accused quarreled in the marriage demanding dowry, is proved to be an omission.

The statement that the marital life of deceased was not happy and that the accused used to beat her on the issue of dowry is proved to be an omission. The statement in the evidence of P.W.6 that he arranged Rs.4000/- from P.W. 3 Vatsalabai is proved to be an omission.

The incident is indeed unfortunate, disturbing and heart rending. The deceased Usha not only ended her own life, but intended to put an untimely end to the lives of her three children. Two children died and the seven month old baby survived. That the deceased Usha, chose to jump in the well along with her three children per se leads to a reasonable inference that Usha was not an emotionally well adjusted personality, is the submission of the learned counsel for the accused. Why would a mother commit suicide and seek to kill her innocent children, is

the question posed by the learned counsel, who further submits that the question must be answered in the backdrop of the fact that the nature and extent of cruelty, even if the entire evidence is taken at face value, would not have driven a normal and well adjusted woman to take such a drastic and horrendous step.

The question posed by the learned counsel for the accused defies an answer with any degree of certainty or conviction. The human mind is too complex and the thought process too inscrutable for this court to venture an answer. It is asserted since centuries that the thoughts of man are not triable, for the Devil himself knows not the thoughts of man. However, I do agree with the submission of the learned counsel for the accused, that the evidence must be subjected to close scrutiny to ascertain whether cruelty is conclusively established and if yes, the statutory presumption under section 113-A needs to be taken aid of.

P.W.1 Sunita Mangare, who is the tenant of the accused has asserted that the relations between Usha and the accused were good and that there was no quarrel between the two

on the day of the incident or prior thereto.

The substratum of the prosecution case is that the deceased Usha was ill-treated to coerce her or her family to satisfy an unlawful demand of Rs.40,000/- made by the accused when he undertook the construction of the house. The evidence of the prosecution witnesses on the demand for Rs.40,000/- is marred by serious inter se inconsistencies. The prosecution witnesses are speaking in different voices as to when the demand was made.

I have noted earlier, that P.W.6 Shamrao Gharat, who is the father of the deceased has admitted in the cross-examination that no such demand was made by the accused. In so far as P.W.2 Asha Dhone is concerned, all that is stated is that accused started construction work of his house and used to ask the deceased to bring money from her parents. P.W.2 does not speak of demand for Rs.40,000/- nor does she specify the year or the month in which the demand was allegedly made. However, she says that the accused started construction work after one year of the marriage. This evidence is also a proved omission. P.W.3 Vatsalabai says that it was at the time of Rakhi festival prior to her death that the deceased disclosed that the accused was

demanding Rs.40,000/- for construction of the house. She says that the father of the deceased borrowed Rs.4000/- from her and after arranging further amount of Rs.10,000/-, paid the accused Rs.14,000/-, one and half month prior to the death of the deceased. The disclosure that the accused was demanding Rs.40,000/-, therefore, was one and half month prior to the death, according to P.W.3 Vatsalabai. P.W.5 Shantabai says that the demand for Rs.40,000/- was after the marriage and her evidence would suggest that the said demand for Rs.40,000/- was made prior to the first delivery. In the First Information Report, P.W.5 Shantabai states that the demand for Rs.40,000/- was made after the delivery of the second child. P.W.6 in the examination-in-chief, does not come forth with a time line but then states that he borrowed Rs.4000/- from P.W.3 Vatsalabai and gave Rs.14,000/- to accused which would mean that P.W.6 the demand was made few months before the death. However, in view of the admission in the cross-examination that the accused did not demand money for construction of house, the assertion in the examination-in-chief must be taken with a pinch of salt.

If the evidence of the prosecution witnesses is minutely scrutinized, the demand of Rs.40,000/- for construction

of house appears to be highly improbable. The accused concededly owns two shops and the prosecution witnesses broadly agree that no demand for dowry was made in the marriage. The time line given by the prosecution witnesses ranges from few months after the marriage to few months before the death, which is a time line ranging over a span of nearly six years. None of the prosecution witnesses has given any specific year much less month or day as the time of the demand of Rs.40,000/- for construction of house.

The prosecution version that the deceased was ill-treated since she did not fulfill the demand of Rs.40,000/- for construction of house, is not confidence inspiring.

P.W.5 Shantabai, the mother of the deceased does speak with conviction about an incident which occurred when she visited the house of the accused on the occasion of the naming ceremony of the first born. She has deposed that accused assaulted her daughter by stick and gave a kick blow since the quantity of the non-veg preparation fell short. Be it noted, that this incident has occurred, even according to P.W.5 Shantabai more than four and half years prior to the death. It is true that even this solitary misdemeanor is deplorable, but then it would be

difficult to hold that this incident, which could be a matrimonial misconduct, is sufficient to establish cruelty within the meaning of sub-section (a) of section 498-A of IPC.

The evidence of the prosecution on the ill-treatment meted out to coerce the deceased to bring Rs.40,000/- from her parents, as I have already held, is not confidence inspiring.

The evidence on the payment of Rs.14,000/- by P.W.6 to the accused cannot be considered in isolation. According to P.W.5 and P.W.6 the said amount was paid to accused since they did not have Rs.40,000/- which was demanded by the accused for the construction of the house. The version of the prosecution witnesses is inconsistent on the amount paid to the accused.

While P.W3 asserts that Rs.14,000/- was paid to the accused, P.W.2 and P.W.5 say that an amount of Rs.10,000/- was paid to the accused. P.W.6 states that he paid Rs.14,000/- to the accused.

However, the evidence of P.W.6 that he borrowed Rs.4000/- from P.W.3 Vatsalabai and gave Rs.14,000/- to the accused is a proved omission. In any event, the admission of P.W.6 Shamrao in the cross-examination, which is reproduced supra, renders the version of the prosecution, that since the accused demanded Rs.40,000/-

for construction of house, which amount P.W.6 did not have, Rs.14,000/- was paid to the accused, is rendered suspect.

The evidence on record is not sufficient and cogent enough to hold that the guilt of the accused is proved beyond reasonable doubt.

The judgment and order impugned is set aside and the accused is acquitted of the offence punishable under section 498-A, 306 read with section 34 of IPC.

The bail bond of the accused shall stand discharged, and fine paid by the accused, if any, shall be refunded.

The appeal is allowed.