1 Cri.WP-3384-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 3384 OF 2009 with CRIMINAL WRIT PETITION NO. 145 OF 2009 CRIMINAL W.P. NO. 3384 OF 2009 Prabhakar Gopal Shrotri, ) Age 72 years, Occ: Retired Govt. Servant ) residing at 127/2/19/1, Shwetambari ) Shri Housig Society, Mahaganesh Colony, ) Pune 411 038. ). Petitioner Versus 1. The Senior Inspector of Police ) Swargate Police Station, ) Opposite - S.t. Stand, Swargate Bus ) Stand, Pune. ) 2. Vivek Sadashiv Dhamankar, ) Age 40 (approximately) ) Occ: Professinal, residing at ) Flat no.B-47, Narayan Baug, Wadgaon) Budruk, Near Sinhagad Road, ) Pune 411 051. ) 3. Rekha Vivek Dhamankar ) Age 40 (aproximately) ) Occ: Professional, ) Residing at Flat No.B-407, ) Narayan Baug, Wadgaon, Budruk, ) Near Sinhagad Road, Pune 411 051. )... Respondents with CRIMINAL W.P. NO. 145 OF 2009 Anand Subhash Khandewale ) 2 Cri.WP-3384-09 Age 36, residing at Flat No.B-407, Narayan Baug) Wadgaon Budruk, Nr. Sinhgad Road, ) Pune 411 051. ).. Petitioner Versus State of Maharashtra ) through Swagate Police Station, ) Pune 411 042. ).. Respodents Shri Satyavrat Joshi, Advocate, for the petitioner (For Respondent no.2 in W.P. No.145/2009) Ms. A.T.javeri, APP, for the respondent N.1 - State. Shri V.B.Nighot, Advocate, for respondent Nos. 2 and 3. Shri V.B.Nighot, i/b. Sri Parinit Saratkar, Advocate, for the petitioner in W.P. No.145/2009). CORAM: J.H.BHATIA,J. DATE : 8th July, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith in both the petitions. Heard the learned Counsel for the parties. 2. Deceased Sandhya daughter of Prabhakar Gopal Shrotri was married to Anand Subhash Khandiwale, accused No.1 on 11.5.2005. After the marriage, she went to live with her husband in a flat at Mangalmurti Complex,Sinhagad Road, Pune. Accused No.3 Rekha and her husband accused No.2 - Vivek and Anandalso used to live together in one flat for number of years prior to the marriage of Sandhya and Anand. Rekha was treated as a sister of 3 Cri.WP-3384-09 Anand. Deceased Sandhya did not like to live in the same house along with accused Nos. 2 and 3 and she had also expressed her displeasure against residing jointly with them in the house. On 14.9.2005, in the evening, accused No.1 Anand left the house leaving a note that he was leaving the house and nobody should try to search for him and that he would come back and contact afterwards. After that, Sandhya consumed some poison to commit suicide. In view of her condition noticed by accused Nos. 2 and 3, they immediately arranged a vehicle of a neighbour and took her to hospital where she was declared dead. Immediately, information was given to theit relatives. The post-mortem was conducted. Investigation was completed and police filed charge-sheet against all the three accused persons under Sections 498A and 306 read with Section 34 IPC. 3. The accused persons filed an application for discharge. The learned Assistant Sessions Judge allowed that application and passed the order discharging all the three accused holding that there was no material even to make out a prima facie case to frame charge against them. That order was challenged by the State as well as by the petitioner Prabhakar Shrotri, who is father of Sandhya, by filing two separate Revision Applications. Both were heard together by the learned Additional Sessions Judge who allowed the Revision Application filed by the State partly and set aside the order in respect of discharge of accused No.1 Anand. 4 Cri.WP-3384-09 However, the Revision Application against discharge of accused Nos. 2 and 3 was rejected and that order was maintained. Revision Application filed by the father of the deceased was disposed of accordingly. The accused No.1 has challenged the impugned order dated 20.10.2008 by filing Writ Petition No. 145/2009. According to him, there is no material to frame charge against him and the order passed by the Assistant Sessions Judge was justified and therefore it needs to be restored. Writ Petition No.3384 of 2009 is filed by the father of the deceased challenging the same order. According to him, the learned Sessions Judge committed error in not setting aside the discharge order in respect of accused Nos. 2 and 3. 4. FIR of this case was lodged by the petitioner Prabhakar, father of the deceased Sandhya on 16.9.2004. The FIR reveals that Sandhya aged 30 years was M.Sc. in Microbiology and she was preparing for P.hd. She was also having a job. As she was "Mangli", they were not getting suitable match for her. Through some Marriage Bureau, Prabhakar and Sandhya had a meeting with accused No.1. After the meeting, they found that Sandhya and Anand were suitable for each other. They decided to perform marriage. Engagement function was held on 19.2.2004. On 11.5.2004 their marriage was performed at Pune. It was a registered marriage. At the time of marriage, none of the relatives of Anand 5 Cri.WP-3384-09 were present. According to the statement of Anand recorded by the police, his cousin had died and therefore, his relatives could not attend the marriage. The marriage was attended by accused Nos. 2 and 3 and after the marriage, Sandhya went to live with her husband where accused Nos. 2 and 3 also resided. It was a four-room flat in Mangalmurti Complex. It appears that at the time of engagement, the accused No.1 was living in a different flat along with accused Nos. 2 and 3. However, after the engagement, but shortly before marriage, he purchased another flat in Mangalmurti Complex. That flat was purchased in the name of accused No.2 Vivek. Deceased Sandhya was a guarantor for a loan taken for that house. Before marriage, accused Nos. 1, 2 and 3 had shifted in the said flat in Mangalmurti complex. As per the FIR, Prabhakar, father of the deceased had also enquired from his daughter as well as the accused persons and he was told that there was some settlement and they had decided to live together. However, according to him, Sandhya was opposed to living in same house along with accused Nos. 2 and 3 and she had made a complaint about it before her father. He had also told accused Nos. 1 and 2 about the displeasure of Sandhya about their living together in the flat. However, he advised his daughter and asked her to wait for some time. She also agreed and began to live as per their settlement. As per FIR, later on, Anand would not speak to Sandhya and whenever her father wrnt to meet her, only accused Nos. 2 and 3 used to entertain 6 Cri.WP-3384-09 him while accused No.1 Anand would not even speak with him. Even though her parents were also living in the same City, she was required to obtain permission of her husband whenever she wanted to visit her parents' place. She was not allowed to go alone. Somebody would be with her. She had complained that Anand would not speak to her and that he used to insult her in presence of accused Nos. 2 and 3. She also informed him that accused Nos. 2 and 3 used to interfere in their family affairs. Anand had purchased a washing machine in the name of accused No.2 Vivek out of amount of Rs.10,000/- which was given by her father and thus she was being mentally and physically harassed. On 14.9.2004, at 11.30 p.m. he got a telephonic message from accused No.3 that Sandhya had consumed some poison and was serious and was taken to hospital. He was asked to come to Hospital immediately. When he went there, he was informed that on examination Doctor had declared her dead on arrival. He was also told that Anand had left the house by leaving a note. 5. Statements of some neighbours and other persons were recorded. None of their neighbours stated that there were any strained relations or any quarrel used to take place between deceased and accused No.1. There is no direct evidence of abetment by the accused persons to deceased Sandhya to commit suicide. Therefore, naturally, the prosecution relies on the presumption to be 7 Cri.WP-3384-09 raised under Section 113-A of the Evidence Act. Under Section 113-A, where a woman has committed suicide within seven years of marriage and the question is whether commission of suicide was abetted by her husband or any relatives of her husband and it is shown that she was subjected to cruelty by her husband or such relatives, 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. She committed suicide within four months after marriage. The presumption under Section 113-A may be raised, if there is a prima facie evidence about cruelty. As per Explanation to 113-A, the word "cruelty" shall have the same meaning as in Section 498A of the IPC. Section 498A provides for punishment for subjecting a woman to cruelty by her husband or other relatives of the husband. Explanation to Section 498A defines "cruelty". It reads as follows :- 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 8 Cri.WP-3384-09 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." The FIR lodged by Prabhakar clearly shows that there was no demand of any property or any other article and there is no allegation that on account of such demand, she was subjected to harassment and therefore clause (b) of the above Explanation is not applicable. The question is whether the conduct of the accused persons falls within the meaning of cruelty as defined in clause (a).For this purpose, "cruelty" means 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 the life, limb or health of the woman. If the FIR and other statements recorded by the Investigating agency are read together, it appears that except that accused No.1 was living in the same house with accused Nos. 2 and 3 inspite of protest by deceased Sandhya, there is not a word against the accused Nos. 2 and 3. Merely because due to cordial relations between accused No.1 on the one hand and accused Nos. 2 and 3 on the other, they were living together in the same house and because that fact was not liked by Sandhya, it cannot be inferred that accused Nos. 2 and 3 had subjected her to cruelty in any manner. In view of this, it must be said that there is not an iota of evidence on the basis of which accused Nos. 2 9 Cri.WP-3384-09 and 3 could be charged for any of the offences. 6. There is no material to hold that accused No.1 Anand had subjected his wife to such a cruelty which would drive her to commit suicide. Sandhya did not like their living jointly in the house with accused Nos. 2 and 3 and she had expressed her diplesure.. However, as per the FIR, there was some agreement or settlement among the accused due to which they were living together as it appears the flat was standing in the name of accused Nos. 2 and 3. It may be said that Anand should have respected the feelings of his newly married wife and should have arranged for a separare house so that they could have complete freedom in their married life particularly immediately after the marriage. It is possible that deceased Sandhya did not like living in the same house jointly with accused Nos. 2 and 3 as they are, strictly speaking, not relatives of Andnd, but only his friends and Rekha was only treated as a sister but not a real sister. Therefore, though expectation of Sandhya to have an independent household with her husband without any interference from outsider could be justified, but merely because the husband did not agree to take separate house, due to which relations between the two got strained, it can be held that the husband had subjected her to such a cruelty which would drive her to commit suicide. It appears from the investigation papers that accused No.1 Anand was under depression because of 10 Cri.WP-3384-09 the strained relations with wife and in the evening of the fateful day, he had left the house leaving a note and immediately Sandhya consumed poison and committed suicide. The matter does not go beyond this and from these facts revealed by the police papers, it cannot be said that the accused no.1 had subjected his wife to such a cruelty which would drive her to commit suicide. Therefore, prima facie, there is no material to prove that accused N.1 had subjected her to cruelty. There is no material for framing charge even under Section 498A. Presumption under Section 113-A cannot be raised and therefore, it should be held that there is also no material to frame charge under Section 306 IPC against accused No.1. 7. Taking into consideration the material collected by the police, I find that the learned Additional Sessions Judge committed error in setting aside the order of discharge passed by the learned Assistant Sessions Judge, Pune as against accused No.1. That order passed by the Assistant Sessions Judge needs to be restored. I find no substance to interfere in the concurrent order passed by both the Courts below about discharge of accused Nos. 2 and 3. 8. For the aforesaid reasons, Writ Petition No.145/2009 is allowed and the impugned order passed by the Additional Sessions Judge, Pune, is hereby set 11 Cri.WP-3384-09 aside. The order passed by the Assistant Sessions Judge discharging accused No.1 is hereby restored.. Rule made absolute accordingly. 9. Writ Petition No. 3384 of 2009 stands dismissed. Rule discharged. (J.H.BHATIA,J.)