1/7 (15)ALS-46-18.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.46 OF 2018 The [ENTITY] Applicant Versus [ENTITY] and anr Respondents
Mrs.[ENTITY], APP for the State.
Mr.[ENTITY] for respondent nos.1 and 2.
CORAM: SMT. BHARATI H.DANGRE, J DATED : 6th SEPTEMBER, 2018 P.C:-
1 By the present application, the [ENTITY] has sought leave to Appeal under [SECTION] of the [ACT]. The judgment passed by the Sessions Judge, [ENTITY] in [CASE NUMBER] is sought to be assailed, by which the Sessions Judge has acquitted the accused persons of the offences punishable under [SECTION], [SECTION]/[SECTION] of the [ACT]. The case of the prosecution is that the accused no.1 was married to deceased [ENTITY] 2/7 (15)ALS-46-18.doc [ENTITY] in the year 2011 and that the deceased was subjected to cruelty on the ground that she had given birth to two daughters. In support of the case of the prosecution, the prosecution has examined PW no.1 [ENTITY], who is the mother of the deceased and one [ENTITY] PW no.2, the sister of the deceased. In order to establish the cruelty and the harassment inflicted to the deceased, an independent witness PW no.3 who is a neighbor is also examined. Apart from this, one maternal uncle [ENTITY] PW no.6 is examined.
Perusal of the testimony of the near relatives including that the mother and the sister of the deceased would reveal that their statements contain bald allegations about the alleged harassment. It is stated by PW no.1 that at the time of marriage, one tola of gold was given to the husband, but 1 Tola was not given to [ENTITY]. However, there is no statement made by PW no.1 - [ENTITY] that on account of the not giving of the said gold ornaments, the deceased was subjected to any ill- treatment or harassment. PW no.1 has not spoken about any harassment in relation of demand of dowry but her specific [ENTITY] 3/7 (15)ALS-46-18.doc statement is that after [ENTITY] gave birth to a girl child, the accused nos.1 and 2 started to taunt [ENTITY] on account of giving birth to a girl child and after two years, [ENTITY] delivered another girl child. This is the only allegation of harassment that PW no.1 talks about. As far as PW No.2 is concerned, she had stated that there was harassment due to various reasons. No specific incidence has been mentioned which would lead to an inference about harassment and the only allegation is that since [ENTITY] gave birth to two girls, she was subjected to harassment. The evidence of the independent evidence PW no.3 who is a neighbor, is also to be noted and she had stated that she had come to know from the neighborhood sources that [ENTITY] was subjected to harassment. Similarly, PW no.6 also does not support the case of the prosecution in specific and in support of the charge of [SECTION] and [SECTION] of the [ACT]. None of the witnesses have given any particulars of harassment. On the other hand, PW no.1 herself has admitted in the cross- examination that the deceased use to frequently visit her parental house and that was always with the consent of the accused. The prosecution witness no.5, a Medical Officer who [ENTITY] 4/7 (15)ALS-46-18.doc conducted the post mortem has given the cause of death as "asphyxia due to hanging".
Learned Sessions Court has adduced the entire evidence brought on record by the prosecution. He records a clear finding that merely because a woman has committed suicide, it would not lead to an inference that the accused persons have instigated her to commit suicide and he has rightly observed that for bringing a charge under [SECTION] of the [ACT], something more has to be brought on record and a nexus has to be shown between the cruelty inflicted and the act of committing suicide. Bald allegations of ill-treatment or the allegations without any substratum cannot be said to be sufficient for driving a person to commit suicide and in the absence of any nexus being demonstrated, the said charge cannot be proved.
2 By now, it is settled position of law that in order to establish a charge under [SECTION] of the [ACT], it is necessary for the prosecution to atleast prima facie establish that the [ENTITY] 5/7 (15)ALS-46-18.doc accused had any intention to aid or instigate or abate the deceased to commit suicide and in the absence of availability of such material, accused cannot be convicted under [SECTION] of the [ACT]. The law as to what are the requirements to constitute offence punishable under [SECTION] of the [ACT], is not more res integra in a catena of cases including the judgment of the Hon'ble Apex Court in [PRECEDENT] considered the earlier judgment and observed thus :
"9. In [PRECEDENT], the appellant was charged for an offence under [SECTION] [ACT] on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die' . This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.
10. In [ENTITY] Singh v. State of M.P., 1995 Supp.(3) SCC 731, the appellant was charged for an offence under [SECTION] [ACT] basically based upon the dying declaration of the deceased, which reads as under:
"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband [ENTITY] wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."
1 2002 Cri.L.J. 2796 [ENTITY] 6/7 (15)ALS-46-18.doc
11. This Court, considering the definition of 'abetment' under [SECTION] [ACT], found that the charge and conviction of the appellant for an offence under [SECTION] is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
As far as charge under [SECTION] of the [ACT] is concerned, the section itself defines and explains the term "Cruelty" and it is only if the conduct of the accused fall within clauses (a) and (b) of the Explanation appended to [SECTION], then the ingredients of 498A can be said to be satisfied. This would cover any willful conduct of such a nature as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether physical or mental) of the woman or the harassment of women with a view to coarse her or any person related to her to meet any unlawful demand of dowry. These ingredients of the said section are not established by the prosecution by bringing on record any evidence to that effect.
3 The findings recorded by the Sessions Judge [ENTITY], therefore, cannot be said to be perverse or illegal and are rather [ENTITY] 7/7 (15)ALS-46-18.doc borne from the record and evidence brought on record by the prosecution in support of its case. The learned Sessions Judge has rightly acquitted the accused nos.1 and 2 of the offences punishable under [SECTION] and [SECTION] of the [ACT] r/[SECTION] of the [ACT]. The said judgment do not suffer from any illegality or perversity and hence calls for no interference.
Leave to Appeal refused.
Application is dismissed.
([ENTITY], J.) Manali Prasanna [ENTITY] Prasanna Date: 2018.09.07 [ENTITY] 16:56:20 +0530 [ENTITY]