1 Cri-Appeal-324-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 324 OF 1993 1. Ramchandra Dondu Pawar ) Age 32 years, Occ: Service, ) R/o. Asave, Taluka Sangameshwar, ) District Ratnagiri. ) 2. Laxmibai Dhondu Pawar, ) Age 55 years, Occu: Household, ) R/o. Asave, Taluka Sangameshwar, ) District Ratnagiri. ).. Appellants (Orig. Accused) Versus State of Maharashtra )..Respondent Mr. Ashok P.Shahani, a/w. D.H.Rohra and Ms. Reshma Mishra,Advocate, for the appellants. Mrs. G.P.Mulekar, APP, for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 1st March, 2011. JUDGMENT : 1. The appellants, who are original accused Nos. 1 and 3 respectively, have, by this appeal, challenged the judgment and order in Sessions Case No. 64/1990 whereby the Additional Sessions Judge, Ratnagiri, convicted them for the offence punishable under Section 498-A of IPC and sentenced them to undergo R.I. for two years and to pay fine. 2 Cri-Appeal-324-93.sxw 2. To state in brief, deceased Archana was married to accused No.1 Ramchandra about ten years before her death. Her parents used to reside at Makhajan in Taluka sangmeshwar, District Ratnagiri, while the family house of her husband was at village Asave in the same taluka. The accused No.2 Suresh, who was acquitted by the trial Court, is the younger brother of accused No.1 Ramchandra. Accused No.3 Laxmibai is their mother. Accused No.1 Ramchandra was in service at Mumbai, while his mother, and younger brother were residing at Asave. For about 4 - 5 years after the marriage, the relations of deceased Archana with her husband and other in-laws were cordial. However, inspite of lapse of long time, she could not conceive and, therefore, there was dissatisfaction in the family. According to prosecution, on this ground she was being harassed and ill-treated. She used to pay visits to her brother's house as and when she would come back from Mumbai and she would make grievance about ill-treatment. On one occasion, accused No.2 Suresh had entered into her bed with some ill-motive and she had shouted and had also complained to her husband, but no action was taken against Suresh. A few days before her death, she had received a message from her husband seeking her consent for second marriage. On 8.4.1990 at about 8.45 a.m. Archana immolated herself in the open field at a distance of about 60 feet from the house of Govind. When the fire 3 Cri-Appeal-324-93.sxw was noticed by the people, they rushed to the spot and extinguished the fire. On enquiry, she disclosed that she was harassed by her mother-in-law. She was taken to hospital. The message was also given to her brother, who reached there but there could not be any talk between them and she died. After investigation, police filed charge sheet against all the three accused persons under Sections 306, 498A read with Sec. 34 of IPC. 3. Accused pleaded not guilty. On behalf of prosecution, in all nine witnesses were examined. Several documents were placed on record. After hearing the parties, the learned Additional Sessions Judge acquitted accused No.2 Suresh on both the charges and also acquitted the accused Nos. 1 and 3 of the charge under Section 306 of IPC, but convicted them for the offence under Section 498A of IPC. 4. Heard the learned Counsel for the parties. perused the record and proceedings of the trial Court. 5. It is proved by the prosecution witnesses and it is not in dispute that Archana was married to accused No.1 Ramchandra about 10 years before her death. On 8.4.1990, she poured kerosene and immolated herself in the open field 4 Cri-Appeal-324-93.sxw at a distance of about 60 feet from the house of one Govind, where many people had assembled for the marriage of a son of Govind. The people heard the shouts of Archana and rushed to the spot. PW-4 Shantaram Pawar, who is resident of Asave, saw that Archana was burning. He and others poured water and extinguished fire. There is no dispute that she had suffered 95% burns and because of that she had died. This fact is proved by PW-6 Dr. Shailendra Bhole, who performed autopsy. Ex.17 is the post mortem report. The learned trial Court acquitted accused persons for the offence under Section 306 holding that the death had occurred more than seven years after the marriage and therefore there could be no presumption under Sec. 113A of Evidence Act that the husband or other in- laws had abetted suicide. 6. As the accused have been acquitted of the charge under Sec. 306, the only question is whether prosecution has proved beyond reasonable doubt that accused persons had subjected Archana to cruelty. Cruelty is defined in the Explanation to Sec. 498A of IPC thus :- "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) 5 Cri-Appeal-324-93.sxw 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." To prove the charge under Section 498A, prosecution has examined PW-1 Shantaram Gamare, who is brother of the deceased and PW-2 Sarita wife of Shantaram. Another witness examined for this purpose is PW-3 Nalini, who is neighbour of PWs 1 & 2. On perusal of evidence of PW-1 Shantaram and PW-2 Sarita, it is clear that for about 4 - 5 years after the marriage, Archana was livingly happily with her husband and there was never any complaint. There was no demand of money as admitted by PW-1 Shantaram himself in the cross- examination. Therefore, cruelty as defined in clause (b) of Explanation to sec. 498A was not committed. Therefore, the evidence of the prosecution will have to be scrutinized to find out whether there was any wilful conduct of the accused of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. 7. Though PW-1 Shantaram and PW-2 Sarita deposed about the quarrels and ill-treatment in general terms, PW-1 Shantaram specifically stated that about 2-1/2 months before the incident, his elder sister Vanita @ Vandana had 6 Cri-Appeal-324-93.sxw been to the house of Archana As per his evidence, she had stayed at the house of Archana for one day. According to him, in her presence, quarrel had taken place and Vanita had seen that Archana was being ill-treated. However, Vanita was not examined as prosecution witness. Therefore evidence of Shantaram about that incident is only hearsay. Shantaram admitted that never any complaint was made to police or to anybody else. In the cross-examination, he deposed that whenever there used to be trifle quarrels, she used to come to his house and after some days she would go back to her husband's house. In this reference, he explained that as there used to be quarrel between her and her husband, she used to return to her house. This indicates that there was no serious dispute between the husband and wife. The second incident which he has specifically quoted is that accused No.2 Suresh had misbehaved with her by entering into her bed in the night time. According to him, after that incident, Archana had been to his house and lived there for about 15 days. Thereafter, Archana was residing with her husband. Admittedly, her husband accused No.1 Ramchandra was living at Mumbai. He was in service there. From the evidence, it appears that she used to stay with husband for some months and some time she would go back to Sangameshwar and used to stay with her brother at village Makhajan, which is at a distance of about 1/2 an hour journey from Asave. In the cross-examination, Shantaram admitted that whenever Archana visited his house, her behaviour was 7 Cri-Appeal-324-93.sxw normal. 8. Evidence of PW-2 Sarita also shows that whenever Archana used to visit their house, she used to complain of ill-treatment on the ground that she could not conceive. According to her, two months before the incident, she had come to their house and had disclosed about the quarrel with the accused. That time, she lived at brother's house for 15 days. She was brought by her sister Vanita because Vanita had seen quarrel by deceased Archana and accused No.1 at her house. According to her, Vanita had suggested that there should be meeting between two parties and only thereafter Archana should be sent back. However, four days after that accused No.1 Ramchanra came to their house and forcibly took away Archana with him. According to Sarita, again 15 days before her death, Archana had come to her house and at that time, accused No.1 had sent message through one Gangaram asking Archana to give her consent for the second marriage, but Archana told Sarita that she answered the letter and refused to give consent for second marriage. PW-3 Nalini also deposed that Archana had received a letter from her husband for giving written consent for second marriage. According to Nalini, Archana replied that she would give consent after her arrival at Mumbai. Thus, there is inconsistency in the evidence of Sarita and Nalini about the response of Archana to the alleged letter seeking her consent for second 8 Cri-Appeal-324-93.sxw marriage. The letter allegedly written by the accused No.1 to Archana or reply letter written by Archana to her husband are not on record. 9. If the oral evidence of PW-1 Shantaram and PW-2 Sarita is carefully seen, it appears that for about 4 - 5 years, Archana and her husband and other in- laws were living happily. However, it appears that because she could not conceive for a long time, there was some dissatisfaction. In India,irrespective of the religion and community, if a woman cannot conceive for certain years, an anxiety is created in the mind of the family members. In the olden days, it was not uncommon for a man to go for second marriage if the wife was unable to conceive. With enactment of Hindu Marriage Act 1955, second marriage during subsistence of first marriage was declared void. Unfortunately, inspiteof the said legislation, such mindset continued among the people, particularly living in villages. This case is of 1990. Due to spread of education, the mindset of people is changing, but while deciding the case, we have to keep in mind the prevailing circumstances. It is possible that because she could not conceive, some bickering might be taking place between Archana and other members of the family. From the evidence, it appears that after accused No.2 Suresh had misbehaved with her. She had stopped living at the house of mother-in-law at Asave and was living with her husband at Bombay and from Bombay she used to go to Sangameshwar and 9 Cri-Appeal-324-93.sxw stay with her brother. 10. The prosecution has placed heavy reliance on the letter Ex.17 which was allegedly written by accused No.1 Ramchanra to his wife. The letter purports to have been written on 27.8.1989. It may be noted that this letter was seized during the investigation. Specimen handwriting and signatures of accused No.1 were obtained and this letter was referred to the handwriting export. The handwriting expert report reveals that the letter Ex.17 was written by accused No.1 Ramchandra. Before the trial Court, the authenticity of this letter was disputed on behalf of the accused on the ground that the handwriting expert was not examined to prove that it was written by the accused No.1 Ramchandra. The trial Court did not accept this contention and after comparing the specimen handwritings with the handwriting on letter Ex.17, the learned Additional sessions Judge was convinced that it was the writing of accused No.1 and therefore he accepted the report of the handwriting expert. The learned Counsel for the accused-appellant fairly conceded before this Court that he would not challenge the authenticity of this letter. On perusal of this letter which runs in 1-1/2 page of the full scape paper, it is difficult to come to conclusion that this letter was sent to mentally harass, insult or humiliate Archana. If the contents of the letter are looked in their totality, it appears that the accused had only expressed his annoyance and anxiety that she 10 Cri-Appeal-324-93.sxw was frequently visiting her parents' place and that sometime she was leaving the house and going to brother's house without seeking any permission. He questioned as to why she was frequently going to Sangameshwar and staying there for 8-15 days. Having said so, in the next sentence, he stated "There must be somebody there for whom you go frequently". On the basis of this sentence, the trial Court came to conclusion that it was an allegation against her character and therefore, it amounted to cruelty. In the letter repeatedly he had expressed his desire that Archana should live with him at Mumbai only. In the same letter, he said that at the time of Diwali, he would be coming back to village and at that time he would be bringing one ring for her. He also said that as her Mangalsutra was broken, she could send the same to him to Mumbai through somebody, who would be coming to Mumbai, so that he could get it repaired properly. Thereafter, there were certain advisory words for his younger brother Suresh, who was not doing any work. Taking into consideration this letter in its totality, it is impossible to come to conclusion that he had suspected the character of Archana in any manner or had made any allegations against her character. 11. Even though the letter written by accused No.1 to Archna or the reply letter written by Archana to him, about his request for her consent for second marriage are not on record, it is possible that the accused might have 11 Cri-Appeal-324-93.sxw thought about it and she might have received such message. It is also possible that because she could not conceive for about 10 years after the marriage and her husband was thinking to enter into second marriage, she might be in depression and therefore she committed suicide, but in view of the evidence on record it is difficult to come to conclusion that accused had treated her with cruelty. Taking into consideration all the facts and circumstances, it is difficult to sustain the judgment and order of conviction for the offence under Section 498A. 12. Therefore, the appeal is allowed and the impugned order of conviction and sentence are here by set aside. The accused Nos. 1 and 3 are acquitted of the charge under Section 498A read with Section 34 of IPC. (J.H.BHATIA,J.) 12 Cri-Appeal-324-93.sxw