be appropriate to refer to the question which had
come up for consideration before the Hon'ble the
Supreme Court in the matter of Bhairaon Singh vs.
State of M.P. (supra). The question recorded by
the Hon'ble Supreme Court in the above Judgment in
Para 2 is as under:
"2. The question that arises for consideration
in this appeal by special leave is : in a case
where accused has been acquitted of the offence
punishable under Sections 304B and 306, IPC,
and the death of wife is neither homicidal nor
suicidal but accidental, whether the oral
evidence of witnesses about what the deceased
had told them against the accused about the
treatment meted out to her is admissible under
Section 32(1) of the Evidence Act to sustain
conviction under Section 498A IPC?"
The Hon'ble Supreme Court then dealt with
the provisions under Section 32(1) of the Indian
Evidence Act, 1872 and the concerned law on the
subject and after referring to the evidence of the
brothers of the victim in that matter, observed in
Para 11 as under:
"11. The moot question is: whether the
statements attributed to the deceased could be
used as evidence for entering upon a finding
that the accused subjected Ranjana Rani @ Raj
Kumari to cruelty as contemplated under
Section 498A, IPC. In our considered view,
the evidence of PW4 and PW5 about what the
deceased Ranjana Rani @ Raj Kumari had told
them against the accused about the torture and
harassment is inadmissible under Section 32(1)
of the Evidence Act and such evidence cannot
be looked into for any purpose. Except Section
32(1) of Indian Evidence Act, there is no
other provision under which the statement of a
dead person can be looked into in evidence.
The statement of a dead person is admissible
in law if the statement is as to the cause of
death or as to any of the circumstances of the
transactions which resulted in her death, in a
case in which the cause of death comes into
question. What has been deposed by PW4 and
PW5 has no connection with any circumstance
of transaction which resulted in her death.
The death of Smt. Ranjana Rani @ Raj Kumari
was neither homicidal nor suicidal; it was
accidental. Since for an offence under Section
498A simpliciter, the question of death is
not and cannot be an issue for consideration,
we are afraid the evidence of PW4 and PW5 is
hardly an evidence in law to establish such
offence. In that situation Section 32(1) of
the Evidence Act does not get attracted."
8. In view of the above observations of the
Hon'ble the Supreme Court, it is clear that what
victim told PW1 and PW2 against the accused
about the alleged demand and harassment would be
inadmissible evidence under Section 32(1) of the
Indian Evidence Act and the said evidence cannot
be looked into as here also death appears to be
accidental.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.93 OF 2003
Subhash Purandas Pawar, Vs The State of Maharashtra
CORAM: A.I.S. CHEEMA, J.
DATED : 15TH JUNE, 2016.
1. The Appellant original accused has been
convicted in Sessions Case No.36 of 2002 by
Additional Sessions Judge, Jalgaon vide Judgment
dated 16th January 2003, under Section 498A of
the Indian Penal Code, 1860 ("IPC" in brief) and
has been sentenced to suffer rigorous imprisonment
for three years and to pay fine of Rs.2000/. In
default of fine, he has been directed to suffer
further rigorous imprisonment for six months. The
accused came to be acquitted of offence under
Section 306 of IPC with which also he was charged.
2. In brief, the case of the prosecution is
as follows:
A). Contents of F.I.R. show that Sunita, the
daughter of PW1 Changdeo Tulshiram Rathod (here
after referred as "victim") was married with the
accused on 18th April 2000. After marriage, she
went to reside with the accused at Mordad Tanda.
Later on accused was appointed as teacher at
Akadikheli, TqNandurbar and the accused started
residing at place called MhaswadPimpri. On
holidays he used to come down to Mordad Tanda. For
some time victim was treated well. In April 2001
victim came to the place of her father,
complainant PW1 Changdeo at Walthan Tanda. She
told her father that her husband is required to go
up and down between MhaswadPimpri and Akadikheli
and has been asking for Rs.50,000/ to buy
motorcycle. She had come to her father for 23
times but did not ask for money and went back,
because of which the accused had beaten her and
was giving her physical and mental illtreatment.
The complainant explained to her and sent her
back. Later on she came for delivery and at that
time also she told about this fact. She delivered
a son (Saurabh another victim). When the accused
came to take back victim Sunita, he demanded money
from the complainant to buy motorcycle.
Complainant told him that he does not have the
money. As such the accused beat victim at his
house. One Kantilal Rathod was present at that
time. On 24th December 2001 victim Sunita along
with victim Saurabh and accused came to the place
of the complainant Changdeo. On 25th December 2001
there was programme of "Nawas". Thereafter accused
again asked for Rs.50,000/ to purchase motorcycle
and picked up argument. Accused then started to go
with the victim to Mordad Tanda. At that time
complainant sent his son Sandeep PW2 along with
them. After going back home, accused again beat
victim. On 26th December 2001 PW2 Sandeep along
with victim Sunita and Saurabh started to come by
train to Walthan. Accused was also with them. At
that time victim jumped from the running train and
fell below bridge. In such act of hers, she and
the infant Saurabh died. Thus the complaint was
filed vide Exhibit 11.
B). Before the complaint was filed on 27th
December 2011, on 26th December 2001 after the
incident, Kotwal of village Jamada had filed
Accidental Death (A.D.) Report (Exhibit 13) and
A.D. 59 of 2001 was registered by PW3 Yogiraj.
PW3 Yogiraj had gone to the spot and did inquest
panchnamas Exhibit 14 and 15 of the victims and
spot panchnama Exhibit 16 was recorded. When FIR
Exhibit 11 was filed, the offence came to be
registered on 27th December 2001 in the afternoon.
The offence was investigated by PW3 A.P.I.
Yogiraj and after investigation, chargesheet came
to be filed.
C). Charge was explained to the accused under
Section 498A and 306 of IPC. He pleaded not
guilty. His defence is of denial.
3. In the trial Court, the prosecution
examined complainant PW1 Changdeo and his son
PW2 Sandeep. The investigating officer PW3
Yogiraj was also examined. The documents of AD
Report (Exhibit 13), inquest panchnamas Exhibit 14
and Exhibit 15, and spot panchnama Exhibit 16 were
admitted by the accused and thus the documents
were exhibited. The postmortem reports were also
not disputed and are at Exhibit 17 and Exhibit 18.
4. The trial Court considered the evidence
which was brought and recorded findings that the
prosecution failed to prove that the victim had
committed suicide or that the accused had abetted
the committing of suicide by the victim Sunita. It
also held that it was not proved that Sunita was
subjected to cruelty of such a nature which would
drive her to commit suicide or to cause grave
injury to herself. The trial Court, however, held
that between April 2001 to 26th December 2001
victim Sunita had been harassed by the accused
with a view to coerce her to meet unlawful demand
of Rs.50,000/. In support of such findings, trial
Court recorded reasons and while trial Court
acquitted the accused for offence under Section
306 of IPC, it convicted the accused under Section
498A of IPC.
5. I have heard learned counsel for the
Appellantaccused. According to the learned
counsel, the trial Court found that the death of
the victim Sunita and infant Saurabh was due to
accidental fall. According to him, the evidence
did not show that the victim had jumped from the
train. Rather it was a case of accidental fall.
According to the counsel, when Section 306 of IPC
was held as not proved, the evidence of PW1 and
PW2, who were interested witnesses, regarding
what Sunita had told them, was not admissible and
on the basis of such evidence the trial Court
could not have held the accused guilty. The
learned counsel relied on the case of Bhairaon
Singh vs. State of M.P., AIR 2009 Supreme Court,
2603. Learned counsel submitted that if what
Sunita informed her father and brother was
ignored, what remains is evidence of the father
that the accused had at times asked for
Rs.50,000/ to buy motorcycle. According to the
counsel, only because money was asked would not be
reason to conclude that the same was being asked
as dowry or to brand it as illegal. According to
him, PW1 Changdeo did not depose that the victim
was harassed because the amount was not paid. The
evidence of PW2 Sandeep claiming that the victim
was beaten at the house of her parents when the
amount was not paid, was not corroborated by PW1
Changdeo. There was also delay in filing F.I.R.
Thus, according to the counsel, there was no
sufficient evidence to hold the accused guilty.
6. Against this, the learned A.P.P.
submitted that the trial Court itself in the
Judgment referred to the evidence of PW2 Sandeep
along with the recitals in the spot panchnama
which showed that on 26th December 2001 itself
PW2 Sandeep had told the police official that the
victim had committed suicide by jumping from the
train and still the police did not take down his
statement as FIR and thus delay in filing of the
FIR till 27th December 2001 was explained and
could not be said to be fatal to the prosecution.
According to the learned A.P.P., the trial Court
has given sufficient reasons for holding the
accused guilty under Section 498A of IPC. There
was evidence that the accused was asking for money
from his father in law. Thus, according to the
learned A.P.P., the Appeal deserves to be
dismissed.
7. Before discussing the evidence, it would
be appropriate to refer to the question which had
come up for consideration before the Hon'ble the
Supreme Court in the matter of Bhairaon Singh vs.
State of M.P. (supra). The question recorded by
the Hon'ble Supreme Court in the above Judgment in
Para 2 is as under:
"2. The question that arises for consideration
in this appeal by special leave is : in a case
where accused has been acquitted of the offence
punishable under Sections 304B and 306, IPC,
and the death of wife is neither homicidal nor
suicidal but accidental, whether the oral
evidence of witnesses about what the deceased
had told them against the accused about the
treatment meted out to her is admissible under
Section 32(1) of the Evidence Act to sustain
conviction under Section 498A IPC?"
The Hon'ble Supreme Court then dealt with
the provisions under Section 32(1) of the Indian
Evidence Act, 1872 and the concerned law on the
subject and after referring to the evidence of the
brothers of the victim in that matter, observed in
Para 11 as under:
"11. The moot question is: whether the
statements attributed to the deceased could be
used as evidence for entering upon a finding
that the accused subjected Ranjana Rani @ Raj
Kumari to cruelty as contemplated under
Section 498A, IPC. In our considered view,
the evidence of PW4 and PW5 about what the
deceased Ranjana Rani @ Raj Kumari had told
them against the accused about the torture and
harassment is inadmissible under Section 32(1)
of the Evidence Act and such evidence cannot
be looked into for any purpose. Except Section
32(1) of Indian Evidence Act, there is no
other provision under which the statement of a
dead person can be looked into in evidence.
The statement of a dead person is admissible
in law if the statement is as to the cause of
death or as to any of the circumstances of the
transactions which resulted in her death, in a
case in which the cause of death comes into
question. What has been deposed by PW4 and
PW5 has no connection with any circumstance
of transaction which resulted in her death.
The death of Smt. Ranjana Rani @ Raj Kumari
was neither homicidal nor suicidal; it was
accidental. Since for an offence under Section
498A simpliciter, the question of death is
not and cannot be an issue for consideration,
we are afraid the evidence of PW4 and PW5 is
hardly an evidence in law to establish such
offence. In that situation Section 32(1) of
the Evidence Act does not get attracted."
8. In view of the above observations of the
Hon'ble the Supreme Court, it is clear that what
victim told PW1 and PW2 against the accused
about the alleged demand and harassment would be
inadmissible evidence under Section 32(1) of the
Indian Evidence Act and the said evidence cannot
be looked into as here also death appears to be
accidental. In the present matter, the trial Court
recorded reasons and in Para 19 of the Judgment
came to the conclusion that the prosecution had
failed to disclose existence of any act which
would prompt victim Sunita to end her infant son's
life. Trial Court also concluded that
uncorroborated evidence of PW2 Sandeep that the
victim jumped from the train and committed suicide
could not be believed. Trial Court found that
probability of accidental death of Sunita from the
door of the train cannot be ruled out. In Para 20
of its Judgment, trial Court held that the
evidence adduced by the prosecution was not
sufficient to come to the only conclusion that the
victim Sunita committed suicide when the train was
passing over bridge. The prosecution has not
challenged these findings or the acquittal under
Section 306 of IPC by filing Appeal. Reasons
recorded by the trial Court for acquittal under
Section 306 of IPC appear to be in order. Thus
suicide has not been proved. This being so, I have
to proceed further to see if there is acceptable
evidence under Section 498A of IPC.
9. The trial Court discussed the evidence
relating to cruelty from Para 21 of its Judgment.
It discussed the evidence of PW1 and PW2 and in
the process, discussed the evidence as to what the
victim had been telling regarding the alleged
cruelty. Keeping in view the Judgment in the
matter of Bhairaon Singh vs. State of M.P.,
discussed above, I proceed to refer to the
evidence of PW1 and PW2, but I will ignore what
these witnesses stated as far as regards
information received from victim Sunita before the
incident relating to the train took place.
10. The evidence of PW1 Changdeo earlier
refers to the marriage taking place and then there
is reference regarding what Sunita had been
telling. Then the evidence is that after delivery
of Sunita, accused had come to the house of PW1
Changdeo and accused had told PW1 that he
required money to purchase motorcycle. According
to PW1, he told accused that he does not have
money and he requested accused to take victim
Sunita with him. PW1 deposed that accused picked
up quarrel with him and told victim Sunita to
immediately proceed along with him. PW1 has then
deposed that after about a month of delivery of
Sunita, she had gone to the house of the accused.
Later on, on 24th December 2001 she came to the
house of this witness along with child and the
accused. On 25th December 2001 it appears that
there was a ceremony of the Nawas of the child of
the accused at the house of PW1 Changdeo. The
evidence shows that for such Nawas (ceremony to
fulfill promise made to deity on fulfillment of
wish made earlier), the accused had arranged for
goat. According to PW1, after the ceremony the
accused again asked for Rs.50,000/ for purchasing
motorcycle immediately. He deposed that he sent
the victim Sunita along with the accused, and his
son had also gone to the house of the accused.
Thus, regarding the alleged demand made by the
accused, this is the evidence of PW1.
11. Now, if the evidence of PW2 Sandeep is
considered, his evidence also refers to what
Sunita had been telling. He then deposed that
victim Sunita had come for delivery to their house
and after the delivery, the accused came.
According to this witness, accused told parents of
PW2, to provide him money and his father (PW1)
told accused that he is not having money. This
witness deposed that while at his house, the
accused beat victim Sunita. The further evidence
of PW2 is that after the Nawas on 25th December
2001, the accused again demanded money from
parents of PW2 and that accused beat the victim
and also threatened father of the witness. The
learned counsel for the Appellantaccused has
rightly submitted that although PW2 Sandeep
claims that on both the occasions when the accused
was at the house of his fatherinlaw and made
demand, accused beat the victim, the complainant
PW1 himself did not depose that the accused had
beaten victim Sunita in the house of her own
parents or that accused had threatened the
father inlaw. PW2 in fact in the crossexamination
even claimed that victim Sunita had
been beaten in presence of her parents. However,
PW1 did not depose that the victim was beaten by
the accused in his presence.
12. Looking to the above evidence, the only
material which was brought on record by the
prosecution which is admissible evidence, is that
the accused had made the demand of money. PW1
claimed that the accused had, in this context
quarreled, but no particulars of the alleged
quarrel are mentioned by PW1. No material has
been brought that for nonfulfillment of such
demand the victim was subjected to any particular
harassment in the presence of PW1 and PW2. This
being so, after ignoring the inadmissible
evidence, the evidence which can be relied on, is
not sufficient to conclude offence under Section
498A of IPC. I thus find that I am not able to
maintain conviction as recorded by the trial
Court. The Judgment of the trial Court needs to be
interfered with as not maintainable. The same is
substantially based on inadmissible evidence.
13. For the reasons recorded above, I pass
the following order:
O R D E R
(I) The Appeal is allowed.
(II) The impugned Judgment and order of
conviction and sentence as passed against
the Appellant accused under Section 498
A of the Indian Penal Code, 1860 is
quashed and set aside.
(III) The Appellant accused is
acquitted of the offence under Section
498A of the Indian Penal Code, 1860.
(IV) The bail bonds of the Appellant are
cancelled.
[A.I.S. CHEEMA, J.]
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