1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO. 277 of 1999 Date of decision:29/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No. 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/277-99crra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.277 of 1999 Pralhad s/o Venkatrao Ghogre, Age: 39 years, Occ. Agri., Resident of Pangara, Taluka & District Nanded. ...APPLICANT VERSUS The State of Maharashtra. ...RESPONDENT ... Mr. K.C.Sant, Advocate, for the applicant. Mr. D.R.Korde, APP, for the respondent State. ... CORAM : K.U.CHANDIWAL, J. DATE : 29/9/2009 *** ORAL JUDGMENT: 1. The conviction recorded in Sessions Case No.46/1991, for an offense under Sections 498-A and 306 of IPC, by the 4th Assistant Sessions Judge, Nanded, directing the accused to undergo rigorous imprisonment for three years on each count and to pay a fine was tested in Criminal Appeal No.39/1992 before the learned Additional Sessions Judge, Nanded, who dismissed the Criminal Appeal, and confirmed conviction. The 3 original accused/applicant is in revision. 2. On 19.8.1999, Rule was made returnable peremptorily. According to Mr. K.C.Sant, learned Counsel for the applicant, evidence of PW No.2, father and PW No.3, mother or PW No.5 Maruti, uncle of the deceased, and PW No.4 Pandit Kashiram, her brother, do not collectively display of demand in terms of infraction of Section 498-A of IPC, there is no eventuality of any abetment, as ingredients of Section 306 or 107 of IPC, are not carved out. The intention to commit the offense cannot be gathered. None of the villagers are examined - if, indeed, there was harassment for share in the agricultural property or demand of dowry. 3. Learned A.P.P. informs that, evidence of PW No.4 illustrate that there was ill-treatment which is established and the incident has taken place within three years of the marriage. 4. FACTS: Deceased Gayabai, daughter of Kashiram was married to the accused/applicant two years prior to her death. After her marriage, Gayabai went at the matrimonial home to live with the accused at village Pangra. Prayagbai's father had left 5 acres of land. It was after father's 4 death Prayagbai and her sister Radhabai partitioned that land to 50 per cent. The accused/applicant, it is stated, was insisting deceased Gayabai to get her mother's land transferred and to enter in his name. It was on this count there was beating, the applicant used to harass her. Gayabai allegedly conveyed all these aspects to parents at Wadepuri whenever she had occasion to do so. 5. About eight months prior to her death, Gayabai was brought to Wadepuri for the purpose of delivery. She delivered a son. It is contended, even at the parental abode, Gayabai and her husband had a brawl. Gayabai was not ready to accompany her husband. Thereafter, on 12.4.1989, Gayabai died by drowning in the well which was in the field under cultivation on Batai basis with the accused/husband. The post mortem notes indicated that Gayabai died because of asphyxia due to drowning. In the viscera, no poison was detected. 6. It was sad demise of Gayabai. The father Kashiram lodged report vide Crime No. 32/1989 against the accused on 13.4.1989. EVIDENCE: 7. The evidence led by the prosecution on 5 the point of cruelty to Gayabai consists of testimony of her parents i.e. Kashiram, father (PW 2), Prayagbai, mother (PW 3), Pandit, brother (PW 4) and Maroti (PW 5), paternal uncle, as stated above. The cumulative effect of reading evidence of PW No.2 Kashiram, PW No.3 Prayagbai, PW No.4 Pandit, finds that the accused was illtreating Gayabai and it was so indicated by Gayabai to her parents. PW No.5, the uncle, who resides separately, also joined the chorus to say though he is separate in mess, but Gayabai, whenever she used to come to Wadepuri, used to meet him and she was stating about the husband ill-treating her as he was insisting that the land in the name of Prayagbai should be entered in his name. 8. On appreciation of evidence of PW No.2 Kashiram, PW 3 Prayagbai, PW 5 Maruti it is clear, the events they have canvassed are not in proximity to the date of the incident. The same are stray incidents/events about the so called ill-treatment by her husband, which indeed were patched, as Gayabai delivered a child. 9. The crucial role is that of Pandit (PW 4) as he says, when he had been to the matrimonial home of Gayabai, she was not sent to Wadepuri for the purposes of attending a fare and it was at such moment, Gayabai, weepingly, told 6 her husband was ill-treating her. Though the learned Sessions Judge has referred that it was demand of transfer of property, however, it is not so in the evidence of PW No.4 that, there was, indeed, immediate information to her brother about such transfer of property sought by the husband, to be a root cause for Gayabai to suffer drowning by jumping in a well. PW 4's evidence is nothing more than normal wear and tear in matrimonial life. She did not ascribe any overt act by husband which has made her life miserable. 10. The Counsel for the accused applicant has placed reliance to the matter of Bhagwan Das V. Kartar Singh and others ( 2007 AIR SCW 3107). It was observed by the Apex Court in paragraph No.8, as under: "8. The only allegation against the appellant was that they harassed the deceased Shobha because she did not bring adequate dowry. Hence, it is submitted by the learned counsel for the appellant that this amounted to abetment to suicide and hence was covered under Section 306 IPC, read with S. 107." This contention, as was agitated, was not approved by the Apex Court. Lordships in the said judgment have observed in paragraph No.16, as under: 7 "16. However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide. Vide Kans Raj vs. State of Punjab & Ors. 2000(5) SCC 207, Satvir Singh & Ors. vs. State of Punjab & Anr. 2001(8) SCC 633, Smt. Shanti & Anr. vs. State of Haryana AIR 1991 SC 1261." 11. In the matter of State of West Bengal v. Orilal Jaiswal (1994 (1) SCC 73), the Apex Court has held as under: " The courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty." 8 12. It is an unfortunate event that the victim, who had only 10/11 months old son, succumbed, by jumping in a well. It could not be an accidental death as there were no symptoms noticed or recorded during panchnama. The post mortem notes indicate, she was 2/3 months old pregnant. Though Gayabai has committed suicide within a period of 2/3 years of her marriage, leaving behind child, it was expected from the prosecution to have proved the demand of dowry. The ill-treatment should have been of such peak that it was beyond tolerance and endurance level. The recitals in FIR go to show that the allegations of matrimonial cruelty are vague and sweeping. 13. The bare words of PW No.4 Pandit, meeting Gayabai a day before the day of the incident and Gayabai saying that there was ill- treatment, by itself, will not thread bare unveil the factual details of the so called ill- treatment. There must be a reasonable nexux between harassment and suicide. The earlier events narrated by the parents, as stated earlier, are not immediately preceding suicide. Therefore, the same may not have logical importance as to attract provisions of Section 306 read with Section 107 of IPC. 9 14. The evidence of cruelty is not established though the fact of suicide by Gayabai is indicated and established. The observation of the learned Additional Sessions Judge, Nanded, demonstrate that the evidence is not correctly appreciated. 15. The material contradictions and omissions are not proved for want of evidence of investigating officer. However, merely basing conviction on the statement of PW No.4 was not the correct approach. Consequently, benefit goes to the accused and the order under challenge of conviction is set aside. Revision is allowed in above terms. Rule made absolute. ( K.U.CHANDIWAL) JUDGE agp/277-99crra