Section 113-A of the Evidence Act would not automatically apply: Bombay High Court

ssm 1 Appeal1233.12 final.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION APPEAL NO. 1233 0F 2012 The State of Maharashtra Sharad Ramdas Shelar Age 27 years Ramdas Mahadu Shelar Age 55 years Reshamabai Ramdas Shelar Age 51 years Anna Ramdas Shelar Age 35 years Ujawala Anna Shelar Age 30 years All R o. Gangave Tal. Chinchwad Mr. S.S. Hulke APP for the Appellant Mr. Amey Deshpande a w Smt. V.M. Bait for the Respondent Nos.1 to 5 CORAM A. S. GADKARI J 6TH NOVEMBER 2020 25TH NOVEMBER 2020 The Appellant State of Maharashtra has preferred present Appeal under Section 378(1) of the Code of Criminal Procedure. 1973impugning the Judgment and Order dated 7th May 2012 passed by the learned Additional Sessions Judge 2 Niphad District Nashik in Sessions Case No.210 acquitting the Respondents from ssm 2 Appeal1233.12 final.doc the offence punishable under Section 498 A 306 read with Section 34 of the Indian Penal Coderesident of Tisgaon Taluka Chandwad District Nashik was solemnized with Respondent No.1 i.e. Sharad R. Shelar on 24 th March 2008. The family of the Respondent No.1 was a joint family. Mrs. Manisha Deceased) after her marriage with Respondent No.1 started cohabiting with the joint family of the Respondent No.1. Initially for one year from her marriage the Respondents treated her fairly and properly. A male child is begotten from their wedlock. In the year 2009 Mrs. Manisha had been to her parental house and told her parents that the Respondents were subjecting her with ill treatment on count of domestic work. The deceased stayed at her parental house for 2 to 3 days and then returned to her matrimonial house. Again on the eve of ‘Diwali’ the parents of Mrs Manisha brought her to their house. At that time also Mrs. Manisha told her family members that ill treatment was continued not only on the earlier count but also on the ground that she could not perform agricultural work properly. She also informed the family members from her ssm 3 Appeal1233.12 final.doc parental side that at the instigation of her husband Sharadand her sister in law Smt.Ujawala the other Respondents were causing ill treatment to her. The parents of Mrs. Manisha consoled her by stating that domestic issues do arrive in matrimonial life and asked her to happily cohabit with her husband. In the month of January 2010 the mother of Mrs. Manisha was ill and therefore Mrs. Manisha and her husband Sharadhad been to her parents house. At that time Mrs. Manisha informed her parents that her husband Sharad and other Respondents were subjecting her to ill treatment for want of Rs.30 000 for purchasing a motor cycle. It is the prosecution case that after about a month in order to avoid ill treatment to Manisha at the hands of Respondents her fatherwent to the house of the Respondents and paid the said amount of Rs.30 000 to Ramdas and requested him to treat his daughter properly. It is the further prosecution case that on 17th March 2010 at about 9.00 a.m. the mother of Mrs. Manisha namely Smt Mandabai and brother namely Sopan B. Khairehad been to the house of Mrs. Manisha. At that relevant time Mrs. Manisha told them that the Respondents were still causing ill treatment and were asking her to bring Rs.10 000 from her parents for purchasing a grinder machine. At that time Ujawala raised quarrel with Mrs. Manisha and threatened her that she would see how the deceased cohabits there ssm 4 Appeal1233.12 final.doc Therefore the mother of Mrs. Manisha expressed her intention to take her daughter at her house however Respondent No.2 assured her about safety and security of the deceased. iii) Smt. Mandabai i.e. the mother of deceased and Sopan Khairebrother of deceased came back to their house between 11.00 a.m. and 12.00 noon. At about 5.00 p.m. on the same day Sopan Khairereceived a phone call from Respondent No.4 informing that the deceased was missing since 2.00 p.m. and thereafter P.W. Nos.1 and 2 rushed to the house of the deceased. They took search of the deceased in the vicinity. Dead body of Mrs. Manishawas found floating in a well situated in the precincts of the house of Respondent No.2 The police were informed accordingly. Police rushed at the spot and took out dead body of Mrs. Manisha and inquest panchanamawas drawn on 18th March 2010 between 1.30 a.m. to 2.15 a.m. Police also effected spot panchanamon 18th March 2010 between 9.00 a.m to 9.30 a.m.. Mr. Babulal Baviskar Police Sub Inspector initially recorded accidental death case and started inquiry of it iv) During the course of the said inquiry it was revealed to him that Mrs. Manisha committed suicide due to constant ill treatment and harassment meted out to her by the Respondents. A crime bearing No.310 was accordingly registered. On completion of investigation PSI Mr Baviskar submitted charge sheet in the Court of learned ssm 5 Appeal1233.12 final.doc Judicial Magistrate First Class under Sections 498 A and 306 read with Section 34 of the IPC. Learned Magistrate committed the said case to the Court of Additional Sessions Judge Niphad as the offence punishable under Section 306 of the IPC is exclusively triable by the Court of Sessions. The Trial Court framed charge below Exh 11 under Sections 498 A and 306 read with Section 34 of the IPC against the Respondents. The said charge was read over and explained to them. The Respondents pleaded not guilty and claimed to be tried. The defence of the Respondents was of total denial Their pleas have been recorded below Exhs. 12 to 16. To substantiate charges against the Respondents prosecution examined in all four witnesses namely Shri. Bhagwan K Khairefather of deceased Mrs. Manisha Mr. Sopan Bhagwan Khairebrother of deceased Mrs. Manisha Mr. Ratan K. Khaire P.W.No.3) a relative of deceased Mrs. Manisha and Investigating Officer PSI Baburao Baviskar12 SCC 595. He submitted that P.W. No.1 has admitted that the deceased was happily residing at her matrimonial house and therefore Section 498 A of the IPC is not attracted to the present crime. He submitted that in the cross examination of P.W. No.2 the defence has successfully brought on record vital omissions which are detrimental to the interest of prosecution. The evidence of P.W. No.3 who was close relative of the deceased is hear say in nature and has no direct bearing on the prosecution case. He therefore submitted that the present Appeal may be dismissed ssm 7 Appeal1233.12 final.doc Perusal of evidence of material witnesses i.e. P.W. Nos.1 and 2 would indicate that in their examination in chief they have deposed the facts as narrated hereinabove in sub paragraph Nos.(i) toof paragraph No.3 . In the cross examination of Mr. Bhagwan Khairethe father of deceased Mrs. Manisha he has admitted that whenever he met the deceased she herself did not make any complaint of demand of money by the Respondents. That during the period when Mrs. Manisha deceased) stayed at parental house at the time of her pregnancy she lived happily in the said two months. That Mrs. Manisha and Respondent No.1 were on visiting terms at his house and they used to come on a motor cycle of Respondent No.1. In the cross examination of Mr. Sopan Khaire an omission that on 17th March 2010 when he along with his mother went to the house of the deceased at the relevant time Respondents were found quarreling with his sister has been brought on record. He has further admitted that even prior to the marriage of Mrs. Manisha with Respondent No.1 a motor cycle was there at the home of the Respondent During the course of trial the Respondentsadmitted certain documents namely the spot panchanama inquest panchanama post mortem report etc. and therefore these documents have been accordingly exhibited. ssm 8 Appeal1233.12 final.doc Minute perusal of the evidence of P.W. Nos.1 and 2 clearly discloses that the Respondents did not demand dowry from the deceased The deceased was living at her matrimonial house happily. The alleged demand of Respondents of Rs.30 000 for purchase of motor cycle and payment of it by the P.W. No.1 to the Respondent No.2 is not corroborated by other evidence and it appears that the said statement is as vague as possible. It is to be further noted here that Exh 23 i.e. the spot panchanama discloses that the well had parapet wall and there was no possibility of accidental fall of the deceased into the well. It appears to this Court that the prosecution has failed to prove the basic fact of causing cruelty by the Respondents for want of dowry to Mrs. Manishain paragraph Nos. 30 and 31 has held as under: “30. We are of the view that the mere fact that if a married woman commits suicide within a period of seven years of her marriage the presumption under Section 113 A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty the presumption as defined under Section 498 A IPC may attract having regard to all other circumstances ssm 9 Appeal1233.12 final.doc of the case that such suicide has been abetted by her husband or by such relative of her husband. The term “the Court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband” would indicate that the presumption is discretionary. So far as the present case is concerned we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand nor would the reasoning adopted by the Courts below would be sufficient enough to draw a presumption so as to fall under Section 113 A of the Evidence Act. 31 In this connection we may refer to the judgment of this Court in Hans Raj v. State of Haryana12 SCC 257 2004 SCC217 wherein this Court has examined the scope of Section 113 A of the Evidence Act and Sections 306 107 498 A etc. and held that unlike Section 113 B of the Evidence Act a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113 A of the Evidence Act. This Court held that under Section 113 A of the Evidence Act the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established the Court is not bound to presume that suicide has been abetted by her husband. Section 113 A therefore gives discretion to the Court to raise such a presumption having regard to all other circumstances of the case which means that where the allegation is of cruelty it can consider the nature of cruelty to which the woman was subjected having regard to the meaning of the word ‘cruelty’ in Section 498 A IPC.” It is clear from the evidence on record that the prosecution has failed to prove beyond reasonable doubt the fact that the deceased was subjected to cruelty for non fulfillment of demand of dowry by the Respondents and therefore the presumption under Section 113 A of the ssm 10 Appeal1233.12 final.doc Indian Evidence Act will not be attracted in the present case In the case of Chandrappa and Ors. Vs. State of Karnataka reported in4 SCC 415 the Hon’ble Supreme Court after considering almost all the leading decisions on the point of Appeal against acquittal as contemplated under Section 378 of the Cr.P.C. in paragraph No.42 has held as under: “42. From the above decisions in our considered view the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge 1) An appellate Court has full power to review reappreciate and reconsider the evidence upon which the order of acquittal is founded 2) The Code of Criminal Procedure 1973 puts no limitation restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion both on questions of fact and of 3) Various expressions such as substantial and compelling reasons good and sufficient grounds very strong circumstances distorted conclusions glaring mistakes etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal Such phraseologies are more in the nature of flourishes of language to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion 4) An appellate Court however must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly the presumption of innocence is available to ssm 11 Appeal1233.12 final.doc him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law Secondly the accused having secured his acquittal the presumption of his innocence is further reinforced reaffirmed and strengthened by the trial court If two reasonable conclusions are possible on the basis of the evidence on record the appellate court should not disturb the finding of acquittal recorded by the trial court From the evidence discussed hereinabove it can be safely inferred that the deceased Mrs. Manisha herself jumped into the well thereby ending her life. The Respondents did not cause cruelty to her thereby abetting her to commit suicide. In view of the above discussion and after taking into consideration the entire evidence available on record this Court is of the opinion that the view adopted by the Trial Court is probable in the facts and circumstances of the present case. The Trial Court has not committed any error either in law or on facts while passing the impugned Judgment There are no merits in the Appeal Appeal is accordingly dismissed. (A.S. GADKARI J

Summary: Mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, the presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband was held in the case of The State of Maharashtra vs Sharad Ramdas Shelar [ Criminal Appeal No. 1233 of 2012] held by Justice A.S.Gadkari. The marriage of Mrs. Manisha was solemnized with Sharad R. Shelar on 24th March, 2008. Initially for one year from her marriage, the Respondents treated her fairly and properly. A male child is begotten from their wedlock. Later, the deceased informed her parents regarding ill-treatment she is being subjected to. In order to avoid ill treatment to Manisha at the hands of Respondents, her father went to the house of the Respondents and paid the said amount of Rs.30, 000/- to her husband. Even after this, the ill treatment continued for Rs.10000/-. On 17th March, 2010, Smt. Mandabai and Brother Sopan B. Khaire had been to the house of Mrs. Manisha. At about 5.00 p.m. on the same day, Sopan Khaire received a phone call from one of the Respondent informing that, the deceased was missing since 2.00 p.m. and later upon searching was found dead in well. The Trial Court after recording evidence and hearing the learned Advocates for the respective parties, acquitted Respondents from the charges framed against them by its impugned Judgment and Order dated 7th May, 2012. This Court relied on the case of Mangat Ram vs. State of Haryana. “This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the Court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the Court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word ‘cruelty’ in Section 498-A IPC.” The Court while dismissing the petition held that, the prosecution has failed to establish the wilful conduct on the part of the Respondents to attract Section 498-A of the IPC and their conduct with deceased was of such a nature that it would likely to drive the deceased to commit suicide.