Friday, 22 June 2018

Whether Seeking Financial Help from Wife amount to Cruelty?

 Insofar   as   the   allegations   of   ill­treatment   are
concerned, from the evidence it appears that the prosecution
witnesses have not described any specific instance or specific
nature   of   ill­treatment.   P.W.1   has   merely   stated   that   the
Appellant used to harass Kavita because she was unable to cook
properly and that he used to give abuses to her. This conduct by
itself will not fall within the meaning of explanation (A) u/s
498­A, where the term “Cruelty” is explained. In the fact of this
case, it cannot be said that this conduct of the Appellant was of
such a nature that it was likely to drive Kavita to commit suicide
or to cause grave injury or danger to her life, limb or health. The
allegations fall much short of the requirements of explanation
(a) to section 498­A.
22. Insofar as the demand of Rs.1,000/­ is concerned, as

mentioned earlier, there are no allegations that on that count
specifically Kavita was harassed. Therefore even explanation (b)
where “Cruelty” is explained u/s 498­A is not attracted in the
present case. Even as per the prosecution case, the Appellant
was seeking financial help to secure a room on rent. Considering
the Appellant's poor financial condition, such request for help
cannot be termed as 'unlawful demand.' There is no evidence to
show that the deceased was ill­treated because the amount of
Rs.1,000/­ was not paid.
23. Ms.Kaushik submitted that since the deceased Kavita
had committed suicide within six month of marriage, section
113­A of the Indian Evidence Act, is attracted. The Court was
required   to   raise   the   presumption   against   the   accused.   The
burden shifted on the Appellant to prove his defence. In this
context it is necessary to consider section 113­A of the Indian
Evidence Act, which reads thus;
“113­A – Presumption as to abetment of suicide by a
married woman ­

When the question is whether the commission of
suicide by a woman 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 had 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.”
24. In this case it is true that the deceased Kavita had
committed suicide within six months of marriage. But the crucial
question remains as to whether the prosecution has been able to
discharge its initial burden of showing that her husband had
subjected her to cruelty. For the purpose of this section again
reference is made to the explanation to section 498­A of IPC
where 'cruelty' is explained. As discussed hereinabove, I have
already   reached   the   conclusion   that   the   prosecution   has   not
been able to prove that the Appellant had treated the deceased

with cruelty within the meaning of section 498­A of IPC. In my
opinion, therefore section 113­A is not attracted.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.305 OF 2002

Ananta Laxman Pansare Vs The State of Maharashtra

CORAM :  SARANG V. KOTWAL, J.
DATE :  07th MAY, 2018.



1. The   present   Appeal   is   preferred   by   the   Appellant
challenging the Judgment and Order dated 07/02/2000 passed
by the 8th  Additional Sessions Judge, Pune, in Sessions Case
No.515/2000.

2. By the said impugned Judgment and Order the learned
Trial   Judge   has   convicted   the   Appellant   for   the   offence
punishable u/s 498­A of the Indian Penal Code. The Appellant
was sentenced to suffer rigorous imprisonment for three years
and to pay a fine of Rs.500/­ and in default of payment of fine,
was sentenced to suffer simple imprisonment for one month.
The Appellant was also convicted for the offence punishable u/s
306   of   the   Indian   Penal   Code   and   was   sentenced   to   suffer
rigorous   imprisonment   for   five   years   and   to   pay   a   fine   of
Rs.500/­   and   in   default   of   payment  of   fine  to   suffer  simple
imprisonment for one month. Both the sentences were directed
to run concurrently and the Appellant was given benefit of set
off u/s 428 of Cr.P.C. for the period, for which he was in jail
during trial.
3. Charge was framed vide Ex.2/1 on 02/02/2001. It is
mentioned in the charge that the Appellant was subjecting his
wife Kavita Ananta Pansare (since deceased) to cruelty and illtreatment
on the ground that she was not able to cook properly

and she did not fulfill demand of Rs.1,000/­ and that his acts
were within the section of 498­A of IPC. The Appellant was also
charged for the commission of offence punishable u/s 306 of
IPC, as on 11/09/2000 Kavita committed suicide by pouring
kerosene and setting herself on fire. The Appellant was charged
for abetting her suicide.
4. In support of its case, the prosecution has examined
five witnesses. P.W.1 Sushila Laxman Thite was the mother of
the deceased Kavita and had lodged the FIR. P.W.2 Laxman
Ganpat Thite was the father of the deceased Kavita. He was
examined on the point of ill­treatment meted out to Kavita and
P.W.3   Sampat   Shankar   Kadam,   was   the   maternal   uncle   of
Kavita. He was examined to corroborate the evidence of P.W.1
and P.W.2. Bhanudas Dhakuji More was examined as P.W.4. The
said witness was the Pancha when the spot panchanama was
conducted.   P.W.5   PI   Dattatraya   Chandu   Sonawane   was
examined   as   the   Investigating   Officer,   who   was   attached   to
Khadki   Police   Station   at   the   relevant  time.  Besides   this  oral

evidence,   the   prosecution   has   relied   on   the   documentary
evidence   in   the   form   of   post­mortem   notes,   the   spot
panchanama and inquest panchanama. The post­mortem notes
show that the deceased had suffered 96% burns.
5. The   prosecution   case   has   unfolded   through   the
evidence of P.W.1 Sushila Thite. According to her Kavita got
married to the Appellant in the month of March 2000. After
marriage   both   of   them   started   residing   in   the   house   of   the
Appellant at Khadki. According to her, it was the Appellant's
second marriage. Sushila has further deposed that, initially in
the first month after the marriage, the relations between the
couple were good. But subsequently, the Appellant started illtreating
Kavita. Sushila has deposed that the Appellant was illtreating
Kavita on the ground that Kavita was not able to cook
food properly. She has further deposed that the Appellant used
to give abuses to Kavita. According to Sushila whenever Kavita
visited her house, she used to disclose about such ill­treatment.
On two occasions even Sushila visited their house to have a
word with the Appellant. Even one month prior to the incident
::: Uploaded on - 09/05/2018 ::: Downloaded on - 20/06/2018 06:30:56 :::5 / 20 APEAL­305­02.odt
dated   11/09/2000,   Sushila   along   with   her   brother   Sampat
Kadam had gone to meet the accused to tell him to behave
properly. P.W.1 Sushila further deposed that on 10/09/2000
there was a Pooja at her residence, when Kavita had visited her.
At that time Kavita told her that the Appellant was demanding
Rs.1,000/­ for taking a room on rent. Sushila expressed her
inability and Kavita returned back to her house. P.W.1 Sushila
further deposed that, on 11/09/2000 at around 12.00 p.m. the
Appellant called her on telephone and asked for Rs.1,000/­ for
taking a room on rent. Even at that time P.W.1 Sushila declined
as she did not have that much amount. On that day itself at
about 02.00 p.m. Sushila received a telephonic call that Kavita
had sustained burn injuries. P.W.1 Sushila then went to Sassoon
Hospital   and   found   that   Kavita   had   succumbed   to   her   burn
injuries.   Thereafter   Sushila   went   to   the   Police   Station   and
lodged her FIR. The FIR is on record at Ex.14. The FIR was
registered vide C.R.No.124/00 at Khadki Police Station u/s 498­
A   and   306   of   IPC.   P.W.2   Laxman   Thite   and   P.W.3   Sampat
Kadam have deposed on similar lines.

6. In   the   cross­examination   of   P.W.1   the   defence   has
brought on record, the fact that, one month prior to the date of
incident of commission of suicide, Kavita had left the house of
the Appellant without informing him and was not traceable for
two days. Finally she was brought by P.W.3 Sampat Kadam to
P.W.1's house. Subsequently P.W.1 Sushila has admitted in her
cross­examination   that  Kavita   had   refused   to   accompany   the
Appellant to their house and that Kavita had refused to divulge
her whereabouts when she had gone missing. 
7. P.W.2 Laxman Thite had denied that Kavita had left
the Appellant's house without informing him. This witness has
admitted in his cross­examination that he has not stated before
the police that prior to 10/09/2000 Kavita disclosed to him that
Appellant had demanded the amount from her.
8. P.W.3 Sampat Shankar Kadam has deposed that the
Appellant used to beat her and used to tell her to bring amount

from   her   parents.   However,   in   his   cross­examination   he   has
admitted that he had not stated before the Police that since the
date of marriage the Appellant was ill­treating Kavita and that
he was beating her on the count of demand of money. He has
also admitted that he has not told the police as to when Kavita
had visited his house.
9. P.W.4  Bhanudas Dhakuji More, who was examined as
a   Panch   for   spot   panchanama   has   produced   the   spot
panchanama on record at Ex.24. The spot panchanama describes
the place of incident which was in one of the servant quarters of
Bungalow No.19/1, Hansbari Road, Khadki. A stove and a match
box was found on the kitchen platform. It was a residential
quarter consisting of only one room. A white colour Can without
lid, having some kerosene, was seized from the spot. Some burnt
pieces of clothes were also seized. The deceased was found in
burnt   condition   in   the   same   room.   P.W.4   Bhanudas   More,
however in his cross­examination has admitted that the police
had written the panchanama at the Police Station and he signed

on the panchanama as he was told by the police. He has also
admitted that he had acted as a Panch on three occasions.
10. P.W.5 PI Dattatraya Chandu Sonawane has deposed
about the investigation carried out by him. He has recorded
statements   of   witnesses,   had   arrested   the   accused,   had
conducted the spot panchanama, had collected the post­mortem
notes and had finally submitted the charge­sheet. He admitted
in the cross­examination that he did not seize the stove.
11. The Appellant took a defence of total denial and did
not state anything specifically to throw light on the incident.
12. The learned Trial Judge after recording the evidence,
and the statement of the Appellant and after considering the
submissions made on behalf of the parties, recorded his findings.
The learned Judge convicted and sentenced the Appellant as
mentioned earlier.

13. The learned Trial Judge mainly relied on the evidence
of P.W.1, P.W.2 and P.W.3 and reached a conclusion that the
prosecution has sufficiently proved its case. The learned Trial
Judge was satisfied that the evidence led by the prosecution
clearly establishes the case u/s 498­A as well as under section
306 of IPC. The learned Judge also referred to the presumption
u/s 113­A of the Indian Evidence Act. Thus, after considering
these   aspects,   the   learned   Judge   has   passed   the   impugned
Judgment and Order.
14. I have heard learned Counsel Mr. Abhaykumar Apte
for the Appellant and Ms. Sharmila S. Kaushik, A.P.P. for the
State of Maharashtra.
15. Mr.Apte submitted that the prosecution has miserably
failed   to   prove   its   case.   He   submitted   that   none   of   the
prosecution witnesses has given cogent evidence to explain the
nature of ill­treatment or harassment meted out to deceased
Kavita   and   therefore   the   allegations   fell   much   short   of   the

requirements of section 498­A of the IPC. He submitted that
having failed to prove its case u/s 498­A, consequently even the
offence   under   section   306   of   IPC   is   not   established.   He
submitted   that   assuming   the   prosecution   case   was   true,
Rs.1,000/­ was demanded by the Appellant as a help to acquire
the residential room for himself and deceased Kavita. Therefore
this   demand   cannot   be   termed   as   unlawful   demand   falling
within the meaning  of  section 498­A  of  IPC.  Mr.Apte futher
submitted that the Appellant's first marriage was not an issue in
this   case   and   it   was   nobody's   case   that   because   of   his   first
marriage   or   suppression   thereof,   the   victim   had   committed
suicide.
16. Per contra Ms.Sharmila S. Kaushik, A.P.P. for the State,
submitted   that   the   prosecution   has   fully   established   its   case
beyond   reasonable   doubt.   The   prosecution   witnesses   have
consistently   deposed   about   the   cruelty   meted   out   to   the
deceased   right   after   one   month   of   the   marriage   till   her
commission of suicide in September 2000. She submitted that

the victim committed suicide within six month of her marriage,
therefore presumption u/s 113­A of the Evidence Act was clearly
attracted as the Appellant has failed to discharge his burden.
She   submitted   that   there   was   an   unlawful   demand   of
Rs.1,000/­. She further submitted that there was a phone call at
around 12.00 p.m. on 11/09/2000 by the Appellant to P.W.1. At
that time, the P.W.1 had refused to pay amount and within two
hours of that phone call, the victim had committed suicide and
therefore the incident was too proximate to that phone call.
Thus,   according   to   Ms.Sharmila   S.   Kaushik,   Addl.P.P.,   the
Appellant was the perpetrator of the crime and should be held
liable for the commission of suicide by the deceased Kavita.
17. I have gone through the entire record and proceedings
with the assistance of both the learned Counsel. P.W.1, P.W.2
and P.W.3 are close relations of the deceased Kavita. They are
natural   witnesses,   who   would   know   mental   state   of   the
deceased. According to P.W.1, till one month after the marriage,
which   took   place   in   March   2000,   the   relations   between   the

couple were cordial. Thereafter the Appellant started ill­treating
Kavita, on the ground that she was not able to cook properly
and on that ground the Appellant used to give abuses to her.
P.W.1   has   stated   that   this   fact   was   told   to   her   by   Kavita,
whenever she used to visit her house. This witness thereafter
refers to the demand of Rs.1,000/­ which was made by the
victim Kavita at the behest of the Appellant on 10/09/2000. In
respect of such demand P.W.1 has not stated in her deposition
that   on   her   refusal  to   meet   this   demand,  the   deceased   was
harassed or ill­treated on that specific count. On the next date
i.e.   on   11/09/2000   there   was   a   phone   call   by   the   accused
reiterating   the   said   demand,   but   even   thereafter   there   is
absolutely no evidence as to whether the Appellant had harassed
the deceased on the ground that P.W.1 had refused to meet such
demand.
18. P.W.2   has   specifically   admitted   that   he   had   not
disclosed   to   the   police   that   Kavita   had   told   him   that   the
Appellant was demanding money from her and on that ground

she was being harassed. Insofar as the demand of Rs.1,000/­ is
concerned, it was made by Kavita to P.W.1 and therefore in that
behalf evidence of P.W.1 carries more weightage. Even P.W.3
has admitted that he had not stated before the police that the
Appellant   was   beating   Kavita   on   the   ground   of   demand   of
money. Thus, there is no evidence to show that the Appellant
was ill­treating the deceased on the ground that his unlawful
demand for money was not fulfilled. There are no allegations
that   for   non­payment   of   Rs.1,000/­   specifically   Kavita   was
harassed or ill­treated at any point. 
19. The Appellant had called the P.W.1 at about 12.00
p.m. on 11/09/2000. There is no evidence to show as to from
where he had made this phone call. The prosecution has not led
any evidence to show that after this phone call was made, the
Appellant had met the deceased or had conveyed the refusal of
P.W.1 to her. There is absolutely no evidence to show what
transpired from 12.00 p.m. to 02.00 p.m. The prosecution has
not   led   any   evidence   of   any   neighbour   or   any   other

independent  evidence   to   show   that   there   was   any   further
discussion between the Appellant and the deceased after P.W.1
had refused to pay amount when the Appellant had made that
phone call at 12 O'clock. 
20. In   this   background,   it   is   necessary   to   consider   and
analyze section 498­A of the Indian Penal Code.
498A – Husband or relative of husband of a woman
subjecting her to cruelty ­
Whoever,   being   the   husband   or   the   relative   of   the
husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation – For the purpose of this section, “cruelty”
means ­
(a) any wilful 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.
21. Insofar   as   the   allegations   of   ill­treatment   are
concerned, from the evidence it appears that the prosecution
witnesses have not described any specific instance or specific
nature   of   ill­treatment.   P.W.1   has   merely   stated   that   the
Appellant used to harass Kavita because she was unable to cook
properly and that he used to give abuses to her. This conduct by
itself will not fall within the meaning of explanation (A) u/s
498­A, where the term “Cruelty” is explained. In the fact of this
case, it cannot be said that this conduct of the Appellant was of
such a nature that it was likely to drive Kavita to commit suicide
or to cause grave injury or danger to her life, limb or health. The
allegations fall much short of the requirements of explanation
(a) to section 498­A.
22. Insofar as the demand of Rs.1,000/­ is concerned, as

mentioned earlier, there are no allegations that on that count
specifically Kavita was harassed. Therefore even explanation (b)
where “Cruelty” is explained u/s 498­A is not attracted in the
present case. Even as per the prosecution case, the Appellant
was seeking financial help to secure a room on rent. Considering
the Appellant's poor financial condition, such request for help
cannot be termed as 'unlawful demand.' There is no evidence to
show that the deceased was ill­treated because the amount of
Rs.1,000/­ was not paid.
23. Ms.Kaushik submitted that since the deceased Kavita
had committed suicide within six month of marriage, section
113­A of the Indian Evidence Act, is attracted. The Court was
required   to   raise   the   presumption   against   the   accused.   The
burden shifted on the Appellant to prove his defence. In this
context it is necessary to consider section 113­A of the Indian
Evidence Act, which reads thus;
“113­A – Presumption as to abetment of suicide by a
married woman ­

When the question is whether the commission of
suicide by a woman 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 had 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.”
24. In this case it is true that the deceased Kavita had
committed suicide within six months of marriage. But the crucial
question remains as to whether the prosecution has been able to
discharge its initial burden of showing that her husband had
subjected her to cruelty. For the purpose of this section again
reference is made to the explanation to section 498­A of IPC
where 'cruelty' is explained. As discussed hereinabove, I have
already   reached   the   conclusion   that   the   prosecution   has   not
been able to prove that the Appellant had treated the deceased

with cruelty within the meaning of section 498­A of IPC. In my
opinion, therefore section 113­A is not attracted.
25. For applying section 113­A of the Evidence Act, it is
not sufficient for the prosecution to show that the deceased
committed suicide within seven years of marriage. It is equally
necessary for the prosecution to show that the deceased was
treated with cruelty by such accused.
26. In the instant case there is a strong indication that the
prosecution witnesses are suppressing material facts from the
Court. Those facts are brought out only in cross­examination of
the witnesses. As can be seen from their cross­examination, the
deceased Kavita had left the house of the Appellant one month
prior to the incident of commission of suicide. The prosecution
witnesses have deliberately avoided to mention this fact either
before  police  or in their  depositions.  P.W.3  had in fact  told
Kavita not to divulge her whereabouts to the Appellant when
she had gone missing. This evidence shows that Kavita was very

reluctant   to   accompany   the   Appellant   after   she   had   left   his
house one month prior to the incident. P.W.1 and P.W.3 had
almost forced her to go and reside with the Appellant against
her wish. Mr.Apte submitted that this can be one of the reasons
for her commission of suicide as she was forced to reside with
the Appellant against her wish. The accused has to prove his
defence   only   on   the   touch   stone   of   probabilities   and   in   my
opinion,   the   Appellant   in   the   instant   case   has   sufficiently
probabalized his defence to that extent. 
27. In this background, therefore, none of the acts of the
Appellant can be said to be falling within the meaning of section
107   of   IPC,   where   abetment   is   defined.   In  this   view   of   the
matter, the Appellant cannot be held liable for commission of
offence punishable u/s 306 of the IPC as his act does not fall
within the definition of abetment as given u/s 107 of IPC. There
is no evidence to show that the Appellant either instigated or
aided the deceased in commission of suicide.

28. Thus, taking overall view of the matter as mentioned
hereinabove I am of the opinion that the prosecution has failed
to prove its case beyond reasonable doubt. The Trial Court has
not considered this aspect correctly. With the result, the Appeal
is allowed. The Judgment and Order dated 07/02/2000 passed
by the 8th  Additional Sessions Judge, Pune, in Sessions Case
No.515/2000 is set aside. The Appellant is acquitted from all the
charges. The Appellant's bail bonds stand discharged.
(SARANG V. KOTWAL, J.)        

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