Court: Bombay High Court
Bench: JUSTICE T.V. Nalawade
State Of Maharashtra Vs. Sahebrao Ramrao Muthe & Ors. On 18 January 2013
Law Point:
Indian Penal Code, 1860 — Sections 498A, 306 r/w Section 34 — Cruelty — Abetment to suicide — Common intention — Suicide committed by jumping into well along with one year old son — All witnesses are close relatives of deceased — Case of prosecution that six months after marriage, illegal demand of money was made and to force said demand deceased was beaten and starved, not probable — Husband owns irrigated agricultural land — Total cohabitation was more than 2 years and 7 months — Husband approached complainant on 5.12.1999 itself and informed that deceased had left matrimonial house with son after quarrel with him — Circumstances have created a probability that there was some quarrel on 5.12.1999 between him and deceased thereafter out of anger she left her matrimonial house with son and committed suicide — It is not possible to draw inference that appellants had given ill-treatment to deceased, or there was any illegal demand on their part, or their conduct was ‘wilful’ — Evidence not sufficient to prove offence of cruelty — Order of acquittal upheld.
JUDGEMENT
The State has filed present appeal against the judgment and order dated 14.2.2002 delivered by the learned 1st Ad hoc Additional Sessions Judge, Shrirampur, in Sessions Case No. 42 of 2000, acquitting present respondents original accused of the offences punishable under Sections 498A and 306 read with Section 34 of the Indian Penal Code.
2. Both sides are heard. This Court has perused the original record.
3. The facts leading to institution of the proceedings can be stated as follows:
Deceased Tarabai was daughter of complainant Bhikaji Pawar (PW-4, Exh. 18) who is resident of village Suregaon, Taluka Newasa. Tarabai was given in marriage to accused No. 1 on 30.7.1997. Accused Nos. 2 and 3 are parents of accused No. 1, while accused No. 4 is married sister of accused No. 1. All accused hail from village Muthe Wadgaon. After marriage, Tarabai started cohabiting with accused No. 1 at village Muthe Wadgaon. All the accused were living together. Up to six months after marriage, there was no trouble to Tarabai, but thereafter she started complaining to her parents that accused were asking her to bring an amount of Rs. 35,000 from her parents, as they wanted this amount for construction of house. She disclosed to her parents that accused were beating and starving her, since their demand was not being met with.
4. Tarabai came to her parents for delivery. She delivered a male child. On that occasion also, she made similar complaints to her parents. Thereafter, on 20.11.1999, Tarabai again visited her parents’ house for Bhaubij festival and stayed for two days. This time also, she disclosed that still ill-treatment was continued to her due to non-fulfilment of demand made by the accused.
5. After Bhaubij, Tarabai returned to her matrimonial house. On 5.12.1999 in the morning, she left matrimonial house with her son and since then she was missing. Accused No. 1 made search for Tarabai and went to complainant during search. He informed complainant that Tarabai was missing and so, everybody started searching her.
6. On 6.12.1999, accused No. 3 Ramrao, father of accused No. 1, gave missing report to police. On 7.12.1999, dead bodies of Tarabai and her son were recovered from the well situated in the agricultural land of the accused which is far away from their residential place. Accused No. 1 lodged A.D. report with Police Station, Shrirampur, which was registered as A.D. Case No. 43 of 1999 and police started making enquiry. The dead bodies were sent for post-mortem examination after drawing enquest. Post-mortem reports revealed that Tarabai and her son died due to asphyxia due to drowning. Complainant Bhikaji, therefore, gave report on 7.12.1999 against the accused and the offence came to be registered as aforesaid.
7. During investigation, police recorded statements of witnesses. Map of the spot was got prepared from the revenue authorities. Charge-sheet came to be filed against the accused for aforesaid offences. To the charge, accused pleaded not guilty.
8. Prosecution examined in all eight witnesses. The Trial Court has not believed the relatives of Tarabai, and has held that cruelty as defined under Section 498A of IPC is not proved and that there is probability of other reason for Tarabai committing suicide.
9. Learned A.P.P. Mr. Patil submitted that as Tarabai committed suicide within seven years of the marriage by jumping into well with her son aged about one year, Court can draw presumption under Section 113A of the Evidence Act. It was submitted that when there is evidence about illegal demand and Tarabai being harassed for non compliance of the same, such presumption could have been easily drawn by the Trial Court.
10. On the other hand, Mr. Bhapkar, learned Counsel for the respondents, submitted that the conduct of the accused is important which shows that they never concealed anything from the complainant’s side. In fact, it is the accused who approached the complainant and informed him about missing of Tarabai and it is accused No. 3 who gave missing report to the police. He submitted that even the reason due to which Tarabai had left matrimonial home on the fateful day was informed by accused not only to the complainant, but to everybody.
11. It was submitted that evidence on record is not convincing to prove that there was really illegal demand of Rs. 35,000. It was submitted that considering financial position of the accused which is comparatively sound and the fact that the complainant is simply a labour and was not having financial resources, it is hard to believe that there would be such demand by accused and that too continuously for about two years.
12. The complainant Bhikaji (PW 4 Exh. 18) has given evidence that demand was first made by accused six months after the marriage. He deposed that Tarabai disclosed him about the demand, as also that the accused were beating her and were not providing food to her due to non compliance of the demand. It is deposed that after delivery, Tarabai again made similar disclosure to her parents which was reiterated on her further visit to her parents at the time of Bhaubij festival.
13. If substantive evidence of complainant Bhikaji is compared with his report (Exh.19), it can be seen that there are many material omissions in the report. He had not informed the police that after learning about ill-treatment to Tarabai by accused, he or his relatives had tried to convince the accused to behave well. The report was given on 7.12.1999, whereas Tarabai was missing since 5.12.1999 when this fact was brought to the notice of the complainant prior to 7.12.1999. If really any illegal demand was made by the accused in the past and Bhikaji believed that only because of harassment due to non-fulfilment of illegal demand of the accused, Tarabai had left matrimonial house, he would have definitely approached police and complained to them against the accused. However, he waited till the dead bodies of Tarabai and her son were found. He has not given any explanation as to why he waited till 7.12.1999 for lodging complaint. Due to late giving of FIR, statements of all witnesses were recorded subsequent to registration of crime and those are thus belated statements.
14. Kalpana (PW-3, Exh. 17) is the sister of deceased Tarabai. Her evidence is similar to that of the complainant Bhikaji. She has, however, deposed that at the time of Bhaubij festival, Tarabai had stayed in her parental house for about eight days.
15. Dadasaheb (PW-5, Exh. 20) is the brother of deceased Tarabai. His evidence also, to some extent, is on similar line to that of aforesaid two witnesses. But, he has not deposed that on the occasion of Bhaubij, disclosure about demand and ill-treatment on that count was made by Tarabai.
16. Baban Udhane (PW-1, Exh. 14) is the maternal uncle of the deceased. He is resident of different place. He has tried to say that Tarabai used to visit his house and disclose him about ill-treatment to her. He has given evidence that he had visited matrimonial house of Tarabai and there also, disclosure was made by her to him about ill-treatment given to her. He has also given evidence that Tarabai had once said to him that due to harassment, she did not want to live. He has said that lastly, he met Tarabai 10 months prior to the incident. Evidence of other relatives of Tarabai does not show that this witness was in touch with them and had at any point of time informed them that Tarabai had expressed such grievance to him.
17. The prosecution did not examine any witness from the village of the accused. This is to be appreciated in the light of the fact that all the aforesaid witnesses are close relatives of the deceased. Due to relationship of witnesses with deceased, close scrutiny of their evidence was necessary. The case of the prosecution that six months after marriage, illegal demand of money was made and to force the said demand Tarabai was beaten and starved, does not appear to be probable in nature.
18. The evidence on record shows that the accused own irrigated agricultural land. It is not the case of the prosecution witnesses that at the time of marriage also, there was similar demand. Total cohabitation was more than 2 years and 7 months. If the demand was made six months after the marriage, it can be presumed that witnesses wanted to say that the demand was continued for two years. It is not the case of the witnesses that the accused have no house, or they had started construction of new house so that money was required by them. Absence in the complaint about attempts made by the witnesses to convince the accused goes a long way against the witnesses. Due to such absence, it can be said that there is no force in the allegation of illegal demand.
19. On the other hand, admittedly, accused No. 1 approached the complainant on 5.12.1999 itself and informed him that Tarabai was missing and had left matrimonial house with son after quarrel with him. Accused came searching for Tarabai, and on 6.12.1999 accused No. 3 Ramrao gave missing report (Exh. 25) to police informing that on 5.12.1999, there was quarrel between accused No. l and Tarabai on the count that customary clothes were not given to him on the occasion of Dhonda Mahina (additional month according to Hindu calendar) when the parents of daughter give customary gifts to their son-in-law. These circumstances have created a probability that there was some quarrel on 5.12.1999 itself between accused No. 1 and Tarabai and thereafter out of anger, Tarabai left her matrimonial house with son and committed suicide. From this conduct of the accused, it is not possible to draw an inference that they had given ill-treatment to deceased Tarabai, or there was any illegal demand on their part, or their conduct was ‘wilful’ as mentioned in Section 498A of I.P.C.
20. The Trial Court has held that the aforesaid evidence is not sufficient to prove the offence of cruelty. In the light of circumstances discussed above, this Court is of the opinion that the view taken by the Trial Court is a possible view.
21. For proving offence punishable under Section 306 of IPC, prosecution can ask to use Section 113A of the Evidence Act, provided prosecution is able to prove the commission of offence punishable under Section 498A of IPC. Even after proving said offence, the Court is expected to consider all other circumstances of the case and it is within the discretion of the Court, either to draw presumption or not to draw presumption. Considering the evidence and circumstances on record, it can be said that the Trial Court has held that the offence under Section 498A is not proved and so, there was no question of drawing inference under Section 113A of the Evidence Act.
22. In view of aforesaid facts and circumstances, this Court holds that it is not possible to interfere with the decision of the Trial Court.
23. Appeal, accordingly, stands dismissed.
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