Sunday, 23 June 2013

Mere asking Wife to bring some article of an insignificant value on a stray occasion will not amount to cruelty

At any rate considering the
harassment contemplated under clause (b) of the said explanation
is related with “demand for any property or a valuable security”.
Needless to add that the harassment contemplated under the said
clause (b) is apparently of an persistent nature and is required to
be in relation with the property of an significant value. Further
more it us added that mere asking of bringing some article of an
insignificant value on a stray occasion will not be covered under
clause (b) of the said explanation that is to say the same
amounting to a cruelty contemplated under Section 498-A

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 744 OF 1997
The State of Maharashtra

V/s.
Madhukar Raghunath Kambari

CORAM: P.D KODE, J.
 DATE : 19th October, 2012
Citation;2013 CR L J(NOC) bombay

1) By the aforesaid appeal, the Appellant-State has assailed
the part of the Judgment and Order dated 7th May, 1997 passed by
the Additional Sessions Judge, Raigad-Alibag acquitting the
respondent no.1 from the charge of commission of offence under
Sections 498-A, 306 r/w 34 of the Indian Penal Code. The
respondent no.1 at the said trial was tried for commission of such
offences in furtherance of common intention of himself, his father,
original accused no.2, his mother, original accused no.3 and his
sister, original accused no.4.
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2) The said prosecution emerged out of the charge sheet
submitted by the Neral Police Station as a investigation of crime
no. 12/94 registered with the said police station upon complaint
(Exhibit-14) lodged by PW.1 Janu Thamke, the father of victim
Vandana i.e. wife of respondent against respondent and his father,
mother and sister.
3) According to the prosecution daughter of PW.1 viz. Vandana
had married respondent on 10th May, 1995 and since then she was
residing in village Dhamote at which PW.1 was also residing
alongwith other family members. Vandana after marriage on two
occasions had been to the house of her father and on said
occasions she appraised PW.1 that respondent was beating her
upon suspicion and was also asking her to bring money and
grocery from the paternal house. PW.1 on both occasions
provided grocery and money for house-hold expenditure after
pacifying her sent her back to the respondent.
4) According to the prosecution on 20th October, 1995, father
in law of Vandana, original accused no. 2-Raghunath Dhau
Kambari, her mother-in-law, original accused no. 3-Mainabai
Raghunath Kambari and Sister-in-law, Ramabai Raghunath
Kambari and the respondent on the ground of Vandana after their
demand having not returned gold and silver ornaments given by
them on her marriage assaulted her with fist blows. Vandana
narrated about the said incident to PW.1 when he had been to her
house and thereafter he had taken her for treatment to the
Government Dispensary at Neral. PW.1 produced the case paper
bearing no. 336 dated 21.10.1995 regarding treatment given to
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Vandana at said dispensary while lodging complaint. According to
the prosecution after treatment PW.1 had then taken Vandana to
his house without lodging complaint about the incident at the
police station. In the said night upon assurances given by
villagers one Parsu Bhoir and Allya Mundhe that Vandana would
not be assaulted and would be well treated in future, PW.1 had
sent to the matrimonial house.
4. According to the prosecution on 21st November, 1995
Vandana returned to the house of PW.1 and told him that
respondent has asked to bring a hen for the meal and thereon
PW.1 purchased and handed over hen to her. We also gave
money for expenditure.
5. According to the prosecution on 24th November, 1995 i.e. a
day prior to the lodging of Exhibit-14, Vandana returned to the
house of PW.1 and informed him, her sisters, PW.2, Pama Vehale
and PW.3 Alka Patil, that respondent upon suspicion assaulted her
by fist blows and asked her to bring hen and money from her
father. PW.1 then pacified Vandana by telling that on the next day
he would be sending hen and sent her back to her matrimonial
house. PW.1 thereafter went to the house of one Deshpande,
residing at Sainath Nagar, Neral. As he was returning from the
house of Deshpande he met his daughter PW.3. She appraised
him that quarrel had ensued in between respondent and Vandana
on the ground of having not brought hen from her parental house
and thereafter Vandana burned herself and has sustained burn
injuries and hence she was going to the Police Station. PW.1
rushed to the house of Vandana and found that she has sustained
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burn injuries and learnt from the people gathered that the said
incident occurred at about 6.30 p.m. The villagers and police
brought Vandana from Neral to Government Dispensary at Neral
and at the said dispensary her dying declaration (Exhibit-22) was
recorded by PW.7 Mr. Pardeshi, Special Executive Magistrate.
Vandana was thereafter shifted to Civil Hospital at Thane for
further treatment. According to the prosecution PW.1 lodged
complaint to such effect. After Vandana succumbed to the burn
injuries on 29th November, 1995 the offence under Section 306 of
I.P.C. was added to the crime already registered. After effecting
the requisite investigation PW.8 PSI Patel had charge-sheeted the
respondent and the other three accused for commission of offence
under Section 306, 498-A r/w 34 of Indian Penal Code. 
6. The trial court after appreciating the oral evidence of eight
witnesses and documentary evidence adduced by the prosecution
at the said trial acquitted the respondent and other co-accused
from the charge of commission of offence punishable under
Section 306, 498A r/w 34 of Indian Penal Code. Though
prosecution sought leave to prefer an appeal against judgment
and order of acquittal of all accused, the leave was granted and
appeal was admitted only against respondent. 
7. Mr. P.S. Hingorani, learned APP urged that the trial court
failed to appreciate that the evidence of PW.1, PW.2 and PW.3 in
terms reveal that during the short span of life, Vandana was illtreated by respondent no.1. He urged that the trial court failed to
take into account the provisions of Section 113-A of the Evidence
Act. He urged that the incident in question having taken place
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within few months after the marriage i.e within a span of seven
years, the trial court ought to have presumed that subjecting
Vandana to cruelty by respondent no.1 has abated the commission
of a suicide by Vandana. He urged that considering the evidence
of PW.1,PW.2 and PW.3 in proper perceptive the same leads to the
conclusion of the prosecution having established the commission
of offences under Section 498-A and Section 306 by respondent
no.1. He urged that the prosecution evidence in term reveals that
Vandana was ill-treated and was subjected to cruelty since her
marriage by respondent no.1. The Ld. APP urged that merely
because the same evidence of PW.1, PW.2, PW.3 is not accepted
against respondent no.2 to 4 would be no ground for not relying
the said evidence against the respondent no.1. He urged that
admittedly the evidence pertaining to cruelty to which Vandana
was subjected at her matrimonial house could have flown only
from matters informed by her to her parents and sister. He urged
that the said evidence having remained un-shattered and no
circumstance having surfaced on record for not accepting the
said evidence or any rational reason for committing suicide, the
trial court manifestly erred in discarding the said evidence. He
thus contended that entire Judgment and Order of acquittal of
respondent recorded by the trial court is not only erroneous but
perverse, warranting an interference. He thus urged that the
appeal may be allowed and the Judgment and Order of acquittal
recorded by the trial court against respondent no.1 be quashed
and set aside and he be convicted for commission of offence
under Section 306, 498-A of the Indian Penal Code and be
sentenced in accordance with law.
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8. Mr. G.S. Hiranandani, learned counsel for the respondent
supported the judgment impugned by urging that though it is true
that without any rhyme and reason, no sensible person would
commit a suicide, the same does not absolve the prosecution the
basic burden of establishing that Vandana committed suicide
due to cruelty to which she was allegedly subjected by respondent
no.1 or the other co-accused. By drawing the attention towards
the dying declaration (Exhibit-22) he contended that the matters
stated therein in term reveal the reasons because of which
Vandana had committed suicide. He urged that the matters in the
said of dying declaration amply denotes that suicide was
committed by Vandana in heat of anger and not because of any
act on part of respondent.
9. Learned Counsel further urged that occurrence of an
quarrel between a married couple cannot be viewed with a narrow
campus of the same denoting husband subjecting his wife with
cruelty. He urged that hardly there would be any married couple
without there occurring an quarrel in between husband and wife.
Learned Counsel contended that even accepting the evidence of
PW.1 or that of PW.2 and PW.3 as it is ,it appears that the
prosecution is trying to make mountain out of mole. He urged that
the evidence regarding acts of cruelty surfaced at the trial is
vague and/or in a nature of an improvement made by PW.1 and
other witnesses as rightly observed by the trial court after carefully
scanning the evidence of the said witnesses. It was urged that
the said evidence fails to denote that such acts would be covered
within the parameters of Section 498 of the Indian Penal Code.
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10. Learned Counsel by inviting attention to the provisions of
Section 113-A of the Evidence Act contended that the
presumption provided in the said section is required to be raised
after taking into consideration all the relevant facets. It was urged
that the dying declaration (Exhibit-22) of Vandana recorded by
PW.7 in term reveals that the suicide was resulted of inability of
Vandana to control her anger. He thus contended that hardly any
legal evidence has surfaced of commission of any act constituting
the offence either under Section 306 or 498A r/w of the IPC. He
urged that the judgment and order of acquittal passed by the trial
court neither can be said to be erroneous nor perverse. He urged
that the view taken by the trial court being based upon correct
appreciation of an evidence surfaced at the trial, the same would
not warrant any interference by this court. He thus contended that
the appeal devoid of merit be dismissed.
10. Thoughtful considerations were given to the submissions
advanced by both the parties and the record and proceedings and
the judgment impugned was carefully perused to ascertain the
merits of the said submissions. Considering the tenure of the
submissions advanced and the subject matter being in relation
with the offences under Section 498-A, 306 of Indian Penal Code
and the learned APP having lead finger upon the provisions of
Section 113-A of the Indian Evidence Act, it appears proper to
consider the same before making dilation about the evidence
surfaced at the trial and the conclusions arrived by the trial court
after appreciating the same.
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11. Without unnecessarily reciting the provisions of Section
498-A of Indian Penal Code, it can be safely said that the cruelty
made punishable under the said section has been culled out in the
explanation given to the said section which runs as under :-
Explanation :-
For the purpose of this section, “cruelty” means—
(a) any willful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand.
12. Now considering the nature of the allegation in the present
case and apparently the same being not related with coercing
victim Vandana for meeting any unlawful demand for any property
or a valuable security, it will be wholly unnecessary to make any
detailed dilation about the harassment contemplated under clause
(b) of above stated explanation. At any rate considering the
harassment contemplated under clause (b) of the said explanation
is related with “demand for any property or a valuable security”.
Needless to add that the harassment contemplated under the said
clause (b) is apparently of an persistent nature and is required to
be in relation with the property of an significant value. Further
more it us added that mere asking of bringing some article of an
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insignificant value on a stray occasion will not be covered under
clause (b) of the said explanation that is to say the same
amounting to a cruelty contemplated under Section 498-A.
13. Similarly, even considering the matters in clause (a) of the
said explanation, it is amply clear that the same contemplates a
reasonable nexus between the act committed by the accused
person leading to the victim committing the suicide or causing
grave injury and danger to her life, limb and or health. Needless
to add that the true import of the said section is the acts
complained must be of such a nature having a reasonable
likelihood of the victim due to said act/s committing either suicide
and/or grave injury and danger to her life, limb or health. Hence,
merely because of some demand of an insignificant nature is
followed by suicide committed by an victim would not be covered
within the clause (a) of explanation of the said section unless the
act committed by the victim can be said to be fall out of the acts
committed by the accused.
14. Now even considering the provisions of Section 306 which
provides for an punishment of an abatement of an suicide, it is
amply clear that the same requires of their existing a reasonable
nexus in between the acts committed by the accused person
leading to the commission of an suicide by an victim and/or
abatement of commission of such a suicide by the victim. It an be
added that without existence of such an nexus mischief will not be
covered by the provisions of Section 306 of the I.P.C.
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15. In the same context now reference to the provisions of
Section 113-A of an Evidence Act, the same runs as under :-
Section 113-A :- “Presumption as to
abatement of suicide by a married woman.-
When the question is whether the commission
of suicide by a women had been abetted by
her husband or any relative of her husband
and it is shown that she had committed suicide
within a period of seven years from the date of
her marriage and that her husband or such
relative of her husband has subjected her to
cruelty, the court may presume, having regard
to all the other circumstances of the case, that
such suicide had been abetted by her husband
or by such relative of her husband”.
16. A bare glance of the said section reveals that the even the
said provisions do not contemplate any mandatory presumption
created by the said provision, even though the event of an suicide
had occurred within a period of seven years from the date of the
marriage. The word used “may presume” considered with the
further words “having regard to all the circumstances of the case”
denote that no presumption stipulated by the said section can be
raised merely on the count of the suicide being committed by the
victim within the period of seven years of her marriage. Further
more the further part of section recited hereinabove also denotes
that while considering the question of raising the presumption the
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court has to give regard to all the other circumstances of the case.
Obviously, in event of suicide committed being as an result of any
other cause then no such a presumption can be raised.
17. Having considered the legal provisions relevant to offences
involved in the present appeal, now considering the evidence
surfaced at the trial at the first blush it can be said that the fact of
Vandana having committed suicide at her matrimonial house, PW.1
having lodged the complaint about the same and PW.4 Dr. Sunita
Shankar Jagtap, having treated her and PW.7 having recorded her
dying declaration is not disputed by either side. Apart from the
same, the same is also evident from her dying declaration (Exhibit-
22) considered alongwith the evidence of PW.4 Dr. Sunita Shankar
Jagtap, PW.5 Alu Pandu Mundhe, PW.6 Ramesh Janu Palkar and
PW.7 Deepak Deviprasad Pardeshi, the said aspect does not
require any detailed dilation.
18. Needless to add that through the evidence of PW.7 the
prosecution has duly established of Vandana having made the
dying declaration (Exhibit-22) to PW.7 and PW.7 having recorded
the same. Similarly, the evidence of PW.5, Alu Pandu Mundhe, is
confined to PW.2 having told him about the quarrel occurred in
between Vandana and the respondent. The said evidence also
does not appear to be of any significant help to the prosecution to
supports its case.
19. Now considering the most relevant evidence of PW.1,
father, PW.2 elder sister and PW.3 younger sister of the victim the
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careful scrutiny of the evidence of the said witnesses clearly
reveals that during the short span of six months of the said
marriage, Vandana had been to her parental house only twice.
Though all the said witnesses during the evidence has claimed of
Vandana having complained to them about the ill-treatment at the
hands of the respondent and her relatives, the said entire evidence
is confined to the respondent having allegedly asked her to bring
the hen on two occasions and also asked her to bring the money
for grocery. Apart from the said evidence being vague regarding
the precise nature harassment caused to her, it is difficult to
perceive that the same can be construed to be constituting the
cruelty within the meaning of Section 498-A of the Indian Penal
Code.
20. In the context of the evidence of the said 3 witnesses,
scrutiny also supports that the trial court has also rightly observed
that PW.1 during his evidence has tried to make an improvement
of Vandana having told him of herself being harassed by
respondent and so also by his relatives on the count of herself
having not returned the gold and silver ornaments given by them
in her marriage. Thus the trial court has rightly discarded the said
part of the evidence against the respondent and other accused
who were facing the trial. Similarly, the trial court has also rightly
come to the conclusion of PW.1 and so also PW.3 her sister Alka
having made an improvement at an trial of Vandana having told
them of herself being asked to bring a hen from the parental
house. Without unnecessarily enlisting the improvements made
by the said witnesses at the time of an trial, it can be safely said
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that the observation made by the trial court in paragraph nos. 10
to 16 are well in conformity with the evidence surfaced at the trial
and particularly the matters elicited during their crossexamination. Having regard to the same, it is difficult to find any
infirmity in the conclusion arrived by the trial court of their
evidence not inspiring confidence.
21. Now considering the dying declaration (Exhibit-22) the
same also clearly supports the observations made by the trial
court pointed out by the learned counsel for the respondent that
the same squarely indicates of Vandana having committed suicide
in heat of an anger. Thus from careful examination of the judgment
impugned, it is difficult to find that the trial court committed any
error for coming to the conclusion of hardly their existing any
evidence establishing nexus of the suicide committed by Vandana
with the acts constituting cruelty allegedly committed by the
respondent. Having regard to the same, it is difficult to find any
infirmity in the finding reached by the trial court on the basis of the
evidence surfaced at the trial. Since the said findings are based
upon the evidence surfaced at the trial and the view taken by the
trial court being probable view no interference with the same is
warranted. Needless to add that there is absolutely no substance
in the submission canvassed that the findings arrived are
perverse. Resultantly there being no merit in the appeal preferred
the same deserves to be and accordingly stands dismissed.
(P.D. KODE, J.)
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