1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 172/1999 Sambhaji s/o Bhagwan Deshmukh, Age : 30 years, R/o Dhor Jalgaon, Tq. Shevgaon, Dist. Ahmednagar. ...Appellant. Versus State of Maharashtra, through A.P.P. High Court of Bombay, Bench at Aurangabad. ....Respondent. Mr. L.V. Sangit, Advocate for appellant. Mr. S.G. Nandedkar, A.P.P. for respondent/State. CORAM : A.V. NIRGUDE, J. Date : 2nd December, 2010. ORAL JUDGMENT:- 1 This appeal is filed against the judgment and order passed by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No. 347/1996 convicting the appellant alone amongst the three accused who were tried for the offences punishable under Section 498-A and 306 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for two years and rigorous imprisonment for five years respectively. 2 The case of the prosecution was that soon after the marriage of the appellant with Sangita - the complainant’s sister, in May, 1996, the appellant, his family members and the other accused started harassing her over demand of Rs.15,000 - 20,000/- and ultimately on 2nd September, 1996 i.e. within four months of the marriage, Sangita committed suicide. 3 The prosecution case is based on depositions of eight 2 prosecution witnesses. Amongst them, witness No.4 brother of the deceased and witness No.5 mother of the deceased are more important. The learned advocate appearing for the appellant asserted that the prosecution has not proved its case beyond reasonable doubt and the benefit of doubt should go to the appellant. In order to appreciate his submission, one must give details of the depositions of these two witnesses. 4 Witness No.4 – the brother - stated that his sister Sangita got married to the appellant on 2nd May, 2006 and went to reside at village Dhor Jalgaon which is the native place of the appellant. This witness does not stay at his native place which is Shirala Tq. Pathardi Dist. Ahmednagar because he is employed at Pune. He said, the appellant was doing business of tape recorder repairing at Rahuri. He said the appellant stayed at Rahuri and visited his native place Dhor Jalgaon once a week because the distance between Rahuri and Dhor Jalgaon is about 70 K.M.. This witness further stated that after 2 ½ months of the marriage, Sangita accompanied with her mother in law, her husband and her niece came to village Shirala for celebrating Dhonda festival. At that time, he said Sangita wept and complained to him (he does not elaborate further as to what the complaint was about). He then said that at the time of festival of Raksha bandhan, he reached his village Shirala and found that his sister Sangita had left a day earlier. He said, in order to meet his sister, he went to Rahuri and met the appellant. He said, the appellant complained to him that Sangita was disobedient and did not attend household work properly. He said, he however, could not meet Sangita at Rahuri but learnt that Sangita had gone to village Jogeshwari Akhada which was native place of the appellant’s sister. He said, he went to Jogeshwari Akhada to meet his sister. He said, he even took meals there. He said, at that 3 time, Sangita complained to him that her husband - the appellant had asked her to bring Rs.15,000 – 20,000/- for acquiring a shop. He said, he told her that he did not have money and would manage the amount by the time of Diwali festival. He said, Sangita also complained to him that her husband, mother in law and brother of the appellant were harassing her. Again this witness does not elaborate as to what was the nature of harassment meted out to Sangita and whether the harassment was on account of the demand of the amount mentioned above. Soon thereafter, within few days Sangita died. 5 The prosecution witness No.5 Saraswatibai mother of the deceased recorded her deposition and the gist of which is as under. She said, after the marriage; Sangita, her husband and her mother in law had come to her house for Dhonda festival. She said, at that time, Sangita was weeping. (This witness too does not elaborate as to whether she asked Sangita the reason for her weeping and unhappiness. She does not say as to whether Sangita told her the reason for her weeping). This witness then stated that two days prior to Rakhi Purnima festival, the appellant brought Sangita to her house. She said, at that time, Sangita complained to her that the appellant was asking her to bring Rs.15,000 – 20,000/-. (This witness again is very cryptic while describing this important circumstance. She does not say as to whether Sangita told her the appellant or his family members were harassing her over the demand etc..) She said on the very next day the appellant took back Sangita. She said, after few days i.e. on the day of incident, Sangita came to her house at about 11.00 a. m.. She said, she found Sangita mentally disturbed and weeping. She said, Sangita told her that her husband had reached her at Pandhari pul (Probably a place near village Shirala and from there, Sangita on her own came to Shirala). She also said that 4 Sangita told her that her husband threatened her. (Again this witness does not elaborate as to on what count the appellant had threatened Sangita). She said, thereafter she attended the household duties including entertaining a guest and went out. She said, at about 1.45 p.m. when she came back home, she found a room in her house locked from inside and smoke was coming out of the room. She said, she screamed and neighbour gathered. She said, they broke down door and found Sangita dead due to burns. 6 The third circumstance against the appellant is the suicide note, which was found in the house of the complainant after Sangita had committed suicide. The prosecution has proved that this suicide note was in Sangita’s hand writing. In this suicide note, Sangita has mentioned that when she went back to her room, she was reprimanded severally (Sangita does not mention as to who reprimanded her severally. Such person’s name is not mentioned in the suicide note). Sangita further stated in the note that she thought of committing suicide on the very day but she wanted to tie Rakhi on her brother’s wrist and so she did not commit suicide. She then stated that ‘he’ threatened her saying that if she disclosed (it), he would not allow her to remain alive, he would not allow her to live and would not love her. She then stated as to how her brother is kind and how he treated her well. She further mentioned that, that was her last meeting with her brother etc.. Again Sangita did not mention the person’s name who had threatened her and said to her that he would not allow her to remain alive etc.. Let us assume that this was in reference to the appellant – her husband. Yet Sangita did not elaborate as to why her husband or in laws had reprimanded her and why her husband had threatened her. This suicide note certainly indicates that Sangita committed suicide because of her harassment. But it does not point 5 finger only at the appellant or his family members. The material against the appellant thus is rather thin. But there is sufficient indication on record that the couple was not happy with each other. On one hand the appellant had complained against Sangita that she was arrogant etc. and that she was not doing her household work properly. On the other hand, Sangita had a grievance that she was not being treated properly. The question therefore, is whether the appellant had subjected Sangita to cruelty as contemplated by Section 498-A of the Indian Penal Code. Section 498-A of Indian Penal code reads as under. Section 498-A:- 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 extent to three years and shall also be liable to fine. Explanation :- For the purposes of this section, “cruelty” mens - (a) any willful conduct which is of such a nature s 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”. 7 Word ‘cruelty’ is almost defined in the explanation (a) and (b). 8 Firstly in order to constitute conduct of husband or relative of husband as cruelty, it should be of such a nature that it could drive the victim to commit suicide or to cause injury to herself. 6 This means that the prosecution has to prove that the conduct of the offenders was extremely atrocious. The words of such a nature as is likely are used to indicate higher degree of atrocity. 9 Secondly, in the alternatively cruelty would mean harassment of a woman with a view to coerce her or any person relating to her to meet any unlawful demand of the offender (the husband of the woman or a relative of the husband). This time, there is no indication (in explanation B) that the degree of harassment should be high. 10 The allegations against the appellant in this case would certainly not fall within explanation ‘A’ because the details are not available as to what the appellant had done to the victim. The depositions are sketchy though the witnesses had ample opportunity to give details of the conduct of the appellant. Neither the case would fall in Clause B because there is no material on record to show that Sangita was harassed on account of an unlawful demand. Both above mentioned these witnesses did not say that Sangita told them about the appellant’s harassment to her over his demand of Rs. 15,000 – 20,000/- for the purpose of acquiring a shop. Again it is because the witnesses are quite tacit and explicit while describing this important aspect of their allegation. 11 The prosecution thus would not prove that the appellant’s conduct to his wife amounted to cruelty as contemplated by Section 498-A of Indian Penal code. In view of this failure of the prosecution, it would also fail to prove its case of abetment to suicide. 12 As against this, Mr. T.S. Lodhe the learned A.P.P. appearing for the respondent / State asserted that the prosecution has discharged the initial burden to show that Sangita was harassed over either unlawful demand or so badly treated that it prompted her to 7 commit suicide. He pointed out that Sangita died within four months of her marriage with the appellant. He particularly pointed out that the day on which Sangita committed suicide, she came alone to her mother’s house. She was found emotionally disturbed. She was weeping and on the same day she killed herself. He also pointed out that soon immediately before her suicide, the appellant was with her till she came to village Pandhari pul. He pointed out further that Sangita told her mother that the appellant had threatened her on that day. According to him, this material was sufficient to draw a conclusion that the prosecution had proved that the appellant had treated Sangita with cruelty and it was therefore for him to explain as to why presumption available to the Court under Section 113-A of the Indian Evidence Act, should not be drawn against him. 13 Indeed the appellant could have explained his stand rather more elaborately. He could have stated as to what happened in his four months’ period after marriage with Sangita. He could have also explained as to why she might have committed suicide. However, as said above, the initial burden to prove the case of cruelty is not discharged against the appellant and so the appellant is really saved from giving his explanation in respect of possible reason for his wife’s untimely suicide. I think, the appeal should succeed. ORDER The appeal is allowed. The appellant is acquitted. His bail bond if any, stands cancelled. (A.V. NIRGUDE, J.) ts k/ok 8