High Court
Legal Reasoning
revn-13-2006 judg.odt(13)However, it prima facie appears that both Courts lost the sight of thelaw as regards the proof of cruelty under Section 498-A of the IndianPenal Code and presumption under Section 113A of the IndianEvidence Act while recording the findings that the prosecution hasproved the case beyond the reasonable doubt. The material placed onrecord if read with the rule of appreciation of evidence, reading theevidence as a whole it would be difficult to accept that theprosecution had proved the offence under Section 498-A of the IndianPenal Code. Since the cruelty as defined in the explanation to Section498-A is not established, the prosecution case for abetment to commitsuicide automatically fails. Barely a suicide by the wife in the absenceof any circumstances to prove the nexus of the applicants, they couldnot be sentenced to imprisonment.20.For the reasons above, the Court is of the view bothCourts have erred in law in appreciating the evidence pursuant to therule of appreciation of evidence and it has not properly appreciatedand both Courts have erroneously arrived at the conclusion ofconviction. Hence, the application deserves to be allowed. Hence,the following order :ORDER(i)The criminal revision application is allowed.(ii)The impugned judgment and order of conviction of the learned2nd Adhoc Assistant Sessions Judge, Parbhani dated 29.11.2003 revn-13-2006 judg.odt(14)passed in Sessions Trial No.69 of 2003 and Additional Sessions Judge,Basmath in Criminal Appeal No.83 of 2003 (Old) Criminal AppealNo.15 of 2004 (New) dated 08.12.2005, stands quashed and setaside. (iii)Both applicants/accused are acquitted of the offencespunishable under Sections 498-A and 306 r/w 34 of the Indian PenalCode.(iv) The fine amount deposited, if any, be returned to theapplicants.(v)Bail bonds stand cancelled and surety stands discharged.(vi)Record and proceedings be returned to the learned 2nd AdhocAssistant Sessions Judge, Parbhani.(vii) Rule is made absolute in the above terms. (S.G. MEHARE, J.)Mujaheed//
Arguments
revn-13-2006 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 13 OF 20061.Shri Keshav s/o Maroti Sonwane,Age : 23 years, Occ. Labour,R/o Ranjala, Tq. Aundha (Nagnath)Dist. Hingoli.2.Smt. Ahilyabai w/o Maroti SonwaneAge – 50 years, Occ. Household,R/o. Aundha (Nagnath), Tq. Aundha,Dist. Hingoli...PetitionersVERSUS1.The State of MaharashtraThrough Police Station, Hatta,(Copy to be served on P.P.High Court Bench at Aurangabad)..Respondent...Advocate for Petitioners : Mr. S.J. Salunke h/f Mr. Sudhir K. ChavanAPP for Respondent/State : Ms. Vaishali S. Choudhari... CORAM : S.G. MEHARE, J. RESERVED ON : SEPTEMBER 12, 2024 PRONOUNCED ON : OCTOBER 09, 2024JUDGMENT :-1.The husband and mother-in-law of the deceased havepreferred this revision against the judgment and order of convictionand its confirmation by the learned 2nd Adhoc Assistant SessionsJudge, Parbhani in Sessions Trial No.69 of 2003 dated 29.11.2003and learned Additional Sessions Judge, Basmath in Criminal AppealNo.83 of 2003 (Old), Criminal Appeal No.15 of 2004 (New) dated08.12.2005. revn-13-2006 judg.odt(2)2.The facts of the case in brief could be summarized, thedeceased married the applicant in June 2002. She was cohabitingwith the applicant at Village Ranjala. A month after the marriage, theapplicant and her younger brother-in-law started ill-treating thedeceased for an unlawful demand of Rs.25,000/-. They harassed andill-treated the deceased. They were also putting her to starvation.The mother-in-law was instigating her husband to beat her. After themarriage, she went to her parents for the Nagpanchmi festival. Abouttwo and a half months thereafter, she complained to her parentsabout her harassment and ill-treatment. Then she returned to them.In September, her brother received a message. Hence, he went tomeet her. He noticed swelling in her eye. He also noticed that notreatment was provided to her. Hence, he took her to the eyespecialist at Parbhani. The husband slapped and beat her withby fistand blows at the instigation of his mother. She committed suicide on31.01.2003 by jumping into the well in the village of the applicants.Her funeral was performed at her parents' village. Initially, theaccidental case was registered. Then on the report of her brother, theFIR was registered. The Medical Officer opined that the cause ofdeath of the deceased was drowning. Both Courts appreciating theevidence held the applicants guilty of the offence punishable underSections 498-A, 306 r/w 34 of the Indian Penal Code. The defence ofthe applicants/accused was as appears from their statement under revn-13-2006 judg.odt(3)Section 313 of the Criminal Procedure Code that a false report waslodged. The deceased did not like her marriage with her husband ashe was illiterate. 3.The learned counsel for the applicants vehementlyargued that both Courts erred in law in appreciating the evidence andrecording the incorrect findings that the deceased was treated withcruelty and harassed for unlawful demand of Rs.25,000/-. Thefindings as regards the cruelty are hypothetical and not in consonancewith the evidence led before the Court. The evidence does not proveeither of the charges. There was absolutely no evidence that theapplicants were coercing the deceased to fulfil their demand fordowry. Both Courts erroneously recorded the findings that since shewas instigated, she committed suicide. However, they did notconsider the proximity of the incident and ill-treatment. During herstay with the applicants, she had no complaints at least for ill-treatment for unlawful demand of Rs.25,000/-. Both Courts havemechanically applied the presumption under Section 113A of theIndian Evidence Act. Barely the death of a married woman withinseven years of marriage, the presumption under Section 113A of theIndian Evidence Act does not apply. The test to apply thispresumption set out by the Hon’ble Supreme Court and High Courtsin various judicial pronouncements was ignored. There were nocircumstances as required under Section 113A of the Indian Evidence revn-13-2006 judg.odt(4)Act to attract the presumption. In the absence of other circumstances,that prove the nexus of the acts of the applicants, the applicants havebeen erroneously convicted of the offence punishable under Section306 of the Indian Penal Code. The cruelty as defined under Section498-A was also not proved. Both Courts hypothetically took notice ofthe day-to-day life and relation between daughter-in-law and mother-in-law. No woman could be branded as a bad mother-in-law.However, the findings of the Trial Court were like branding themother-in-law as not a good woman. To bolster his arguments, herelied on the case of Rajbabu Vs. State of M.P., AIR 2008 SC 3212,Mangat Ram Vs. State of Haryana, AIR 2014 SC 1782, State ofMaharashtra Vs. Rajendra Kashirao Bhujade, 2017 All M.R. (Cri.)2256, Dinesh Ganpat Bondre Vs. State of Maharashtra, 2017 (2) ABR(Cri.) 524 and Kunjabai Vs. State of M.P., 2016 All M.R. (Cri.) 410(S.C.).4.Per contra, learned APP supporting the impugnedjudgments and orders argued that prima facie there were no errors onthe face of the record to interfere with the impugned judgment andorder. The scope of revision is very limited. The High Court cannotre-appreciate the evidence unless the glaring features have beenapparently noticed. The specific incidents were narrated. The silenceof the applicant on beating as alleged by her brother is a circumstanceto establish the nexus with ill-treatment. All the witnesses were revn-13-2006 judg.odt(5)consistent. There were no material contradictions and omissions todisbelieve the witnesses. The circumstances established by theprosecution were sufficient to apply the presumption under Section113A of the Indian Evidence Act. Her immediate disclosure of the ill-treatment also inspires the confidence that the witnesses are deposingtruth. Since both impugned judgments and orders are free fromillegalities, the revision deserves to be dismissed.5.Both the learned Trial Court as well as the First AppellateCourt relied on the depositions of the relatives of the deceased andheld the accused guilty. The Courts did not believe the defence of theapplicants/accused that the deceased was more educated than thehusband. Therefore, she was not willing to cohabit with him. BothCourts also did not consider the material brought in the cross-examination by the accused for the reason that their evidence was notimpeached.6.The prosecution case was based upon two incidents, onewas beating her. Therefore, she was not willing to go to her husbandeven then the parents convinced her and the last was the incident ofthe injury to the eyes of the deceased five months before the incident.7.The primary burden is on the prosecution to establish thecase beyond all the reasonable doubt. The specific allegations againstthe applicants were that the husband beat the deceased and causedinjury to her eyes at the instigation of his mother. Her brother took revn-13-2006 judg.odt(6)her to the hospital and brought her back. The grievance of theparents of the deceased was that her husband did not treat her well.However, her brother was silent about why the deceased was beaten.The primary rule of appreciating the evidence is to read the evidenceas a whole and cannot be picked and chosen. It was also theprosecution case that the applicants were starving the deceased. BothCourts appear to have not read the evidence in toto. The materialadmission is that when she went to her home for the first time aftermarriage for Nagpanchmi, she did not complain about starvation orill-treatment. The fact that from the day of treating the deceased atParbhani for eye treatment till her death, there were no complaints ofill-treatment, also appears to have been ignored by both Courts. Itwas also the fact that soon after the death, no report was lodged. Onthe contrary, the star witness, the brother of the deceased admitted inhis cross-examination that he allowed the applicant No.1/husband tolodge the accidental death case. The material fact as regards thenature of the injury to her eyes also appears not established. Thedefence of the accused that he had never been to school and illiterateperson and the deceased was educated up to 7th std, were also thefacts before the Court. Both Courts also did not consider the evidenceof the Medical Officer who performed the post-mortem report thatthere were no external injuries on the dead body, which raises doubt revn-13-2006 judg.odt(7)about the allegations of beating the deceased before the incident. Headmitted that it was the body of a well-nourished person. 8.The learned counsel for the applicants has vehementlyargued that both Courts failed to appreciate the evidence properly,therefore, their decisions are incorrect. The above-mentioned materialevidence is reproduced to examine the legality and propriety of theimpugned judgments and orders. The Court is not oblivious to itsrevisional jurisdiction. The settled law on reappreciation of evidenceunder revisional jurisdiction is that in a revision under section 401 ofCr.P.C. , the High Court does not normally re-appreciate the evidenceby itself and go into the question of credibility of the witness and theassessment of the evidence by the Courts below is accepted as finalunless the appreciation of evidence is vitiated by procedural lawmisreading of the evidence, or where the conclusions the Courtsbelow are manifestly perverse and unsupportable from the evidenceon record. This Court is also aware that when the view of the TrialCourt and the First Appellate Court is possible view, the High Courtshould avoid interference. 9. The report of the incident was lodged after lodging theA.D. When the dead body was taken to the hospital, the relatives whowere the witnesses before the Court were also present. They did notraise a dispute or make any allegations of unlawful demand ofRs.25,000/- and for that, they were beating her. revn-13-2006 judg.odt(8)10.The question is whether the material before the Courtwas sufficient to believe that the deceased was caused cruelty for theunlawful demand of dowry that forced her to commit suicide. 11.The first test to apply Section 498-A of the Indian PenalCode is whether the cruelty, as explained in Section 498-A of theIndian Penal Code, was caused to the deceased either by willfulconduct which is of such a nature that it is likely to drive a woman tocommit suicide or harassment of the woman with a view to coercingher or any of her relatives to meet any unlawful demand for anyproperty or valuable security or on account of failure by her or anyperson related to her to meet such demand. 12.To attract Section 306 of the Indian Penal Code, theburden is on the prosecution that the accused abetted the deceased tocommit suicide.13.The abetment has been defined in Section 107 of theIndian Penal Code. In order to constitute abetment, the abettor mustbe shown to have intentionally aided the commission of the crime.He has to do things which instigates any person to do that thing. Heshould intentionally aid, by any act or illegal omission, the doing ofthat thing. To aid doing of that thing has been defined in Explanation(2) of Section 107 of the Indian Penal Code. The said explanationprovides that whoever, either prior to or at the time of the commissionof an act, does anything in order to facilitate the commission of that revn-13-2006 judg.odt(9)act, and thereby facilitate the commission thereof, is said to aid thedoing of that act. 14.Presumption under Section 113-A of the Indian EvidenceAct speaks of the presumption as to abetment of suicide by a marriedwoman. It provides for the presumption of abetment of a husband orany relatives of the husband if the married woman commits suicidewithin seven years of the date of her marriage. For applying suchpresumption, the prosecution has to prove that the husband or therelatives of the husband had subjected the deceased wife to cruelty. Ifsuch cruelty is not proved, it leads to the inference that thepresumption under Section 113A of the Indian Evidence Act cannotbe raised. When there is no evidence of cruelty by the husband or hisrelatives for the demand of dowry, the presumption under Section113A would not arise. The burden is on the prosecution to prove theserious charges of causing cruelty and harassment to the wife beyondreasonable doubt. The law is well settled that the presumption ofsuicide or abetment by the husband can be drawn only when theprosecution has discharged the initial onus of proving cruelty. Theprecondition to applying the presumption under Section 113A of theIndian Evidence Act is that the suicide should be within seven years ofher marriage due to subjecting her to cruelty as explained in Section498-A of the Indian Penal Code. It is clear that both sections shouldbe read together. Unless the cruelty as defined under Section 498-A is revn-13-2006 judg.odt(10)proved, the Court cannot mechanically draw the presumption ofsuicide under Section 113A of the Indian Evidence Act. 15.The Hon’ble Supreme Court in the case of MahabirPrasad Vs. State of Madhya Pradesh, 1991 SC 2296 held that a wrongappreciation of facts, even if it results in concurrent findings of fact isliable to be set aside. The law is also well settled that the evidence ofthe relatives of the wife could not be brushed aside. However, therule is that it must inspire confidence and it should be of such anature that a prudent man could believe such facts. The second ruleis that the evidence of the relatives should be tested cautiously.16.In the case of Rajbabu (supra), the Hon’ble SupremeCourt laid down the law that mere facts of suicide by women withinseven years and cruelty by husband does not automatically give riseto presumption. The Court is required to look into all othercircumstances of the case. In the case of Mangat Ram (supra), theHon’ble Supreme Court held that the mere fact that if a marriedwoman commits suicide within a period of seven years of marriage,the presumption under Section 113-A of the Evidence Act would notautomatically apply. The legislative mandate is that where a womancommits suicide within seven years of her marriage and it is shownthat her husband or any relative of her husband has subjected her tocruelty, the presumption as defined under Section 113-A of the IndianEvidence Act, may attract, having regard to all other circumstances of revn-13-2006 judg.odt(11)the case, that such suicide has been abetted by her husband or bysuch relative of her husband. The term “the Court may presume,having regard to all the other circumstances of the case, that suchsuicide had been abetted by her husband” would indicate that thepresumption is discretionary. 17.In the case of Rajendra (supra), it has been observed inpara 11 that ‘in order to constitute an offence of cruelty, there has tobe some willful conduct of such a nature as is likely to drive a womanto suicide or to cause injury or danger to life, limb or health. It canalso be of the kind which is performed with a view to coercing thewoman or any person related to her to meet any unlawful demand ofany property or valuable security. Willful conduct and / or coercing awoman for achieving a particular purpose as covered under theexplanations (A) and (B) to section 498(A) I.P.C. is necessary and forthat purpose, it is also necessary for the witness to state the period ofthe harassment, may be by some approximation, and its frequency orconsistency. In the absence of these details, it would be risky for theCourt to make any conclusion regarding willful conduct and / orcoercion of a woman for meeting an unlawful demand. These factshave not clearly come on record in the instant case.’ 18.In the case of Dinesh (supra), the Hon’ble Bombay HighCourt held that it was necessary to bring on record what wereinstances of physical and mental harassment to the deceased. revn-13-2006 judg.odt(12)19.The Trial Court as well as the First Appellate Court weresupposed to test the evidence of the witness on the anvil of theingredients of Section 498-A first and then draw the presumptionunder Section 113A of the Indian Evidence Act. Barely the relativesstating about the ill-treatment of the deceased cannot be acceptedblindly. Such allegations must be read with other circumstances ofthe case in the context of suicide of a woman, or by abetment by herhusband or his relatives. The other circumstances, like the immediateconduct of the parents and brother of the deceased, keeping silentand allowing the applicant no.1/husband to lodge the accidentaldeath case, were the relevant circumstances available on the record.The post-incident conduct does not only apply to the accused but it isequally applied to the first informant or the witnesses also.Therefore, we have a law to doubt the witnesses if they come forwardbelatedly without a satisfactory explanation. Non-establishing theinjuries to the eye of the deceased that those were caused due tohuman acts was also the another circumstance to be considered toprove the harassment and cruelty to the deceased for unlawfuldemand. Another circumstance available on record which wasmaterial to apply the presumption under Section 113A of the IndianEvidence Act, was that no ill-treatment or complaints of ill-treatmentby the deceased for the last five months from the date of hertreatment for eyes and no visits of the parents and relatives.