Sharad Dadarao Sasane vs State of Maharashtra

The appellant is aggrieved by the judgment and order

dated 28-4-2010 rendered by the learned Ad hoc Additional Sessions

Judge, Khamgaon in Sessions Trial 38/2009, by and under which the appellant-accused is convicted for offence punishable under Section

306 of the Indian Penal Code (" IPC " for short) and is sentenced to

suffer rigorous imprisonment for five years and to payment of fine of

Rs.500/- and is further convicted for offence punishable under Section

498-A of the IPC and to payment of fine of Rs.500/-.

Heard Shri S.V. Sirpurkar, learned Counsel for the

appellant and Ms. Ritu Kalia, learned Additional Public Prosecutor for

the respondent.

The accused and his father Dadarao Sasane faced trial for

offence punishable under Sections 306 and 498-A read with Section 34

of the Indian Penal Code. Co-accused Dadarao Sasane is acquitted and

the accused is convicted as afore stated.

The deceased, who married accused Sharad Sasane in

2008, concededly committed suicide by setting herself a fire on

17-2-2009.

The case of the prosecution is that during the short span of

the marital life, deceased Gita was subjected to cruelty. The

ill-treatment drove Gita to commit suicide on 17-2-2009. The

complainant Bhimrao Wankhade (P.W.3) lodged oral report dated

17-2-2009 on the basis of which the Tamgaon police registered offence

under Sections 306 and 498-A read with Section 34 of the Indian Penal

Code. Investigation ensued, and completion thereof led to submission

of charge-sheet in the Court of Judicial Magistrate First Class,

Sangrampur, who committed the proceedings to the Sessions Court.

The learned Sessions Judge framed charge (Exhibit 8)

under Sections 498-A and 306 read with Section 34 of the Indian Penal

Code. The accused abjured guilt and claimed to be tried. The defence

is of total denial.

The suicidal death within short span of eleven months is

not in dispute. It is axiomatic that if the prosecution is in a position to

prove that the deceased was subjected to cruelty within the meaning of

Section 498-A of the IPC, having regard to the other circumstances, the

Court would be entitled to draw presumption under Section 113-A of

the Indian Evidence Act that the accused abetted the suicide.

However, presumption under Section 113-A of the Indian

Evidence Act may or may not be drawn since the legislature has

employed the words "may presume" leaving the Court with wide

discretion. The Court may, even if cruelty is established, refrain from

invoking the presumption in view of the other attending circumstances.

The prosecution essentially and substantially relies on the

evidence of P.W.3 Bhimrao Wankhade (father), P.W.5 Sindhu

Wankhade (mother), P.W.6 Gautam Wankhade (brother) and P.W.8

Rekha Adhe (neighbour), to prove that the deceased Gita was

subjected to cruelty within the meaning of Section 498-A of the IPC.

The common thread which runs through the evidence of

the prosecution witnesses is an incident which occurred when the

deceased and the accused visited village Jastgaon to attend a marriage.

The prosecution is heavily relying on the said incident as proof of

cruelty. P.W.3 Bhimrao states that the marital life of the deceased was

happy for two to three months. P.W.3 states that on 15-2-2009 the

deceased and the accused visited his residence to attend a marriage in

the village. The accused came under the influence of liquor and while

coming was assaulting Gita by fist and leg blows. The accused was

asking Gita to handover the two golden poth (necklace) to him since he wished to visit Pune. P.W.3 Bhimrao states that the couple left the

village at 5-00 p.m. on 16-2-2009. The evidence that the accused came

under the influence of liquor, while coming he was assaulting Gita by

fist and kick blows, is an omission which is proved in the evidence of

the investigating officer.

P.W.5 Sindhu, the mother of the deceased, has deposed

that the couple visited the village for marriage and the accused was

assaulting Gita under the influence of liquor. P.W.3 states that the

accused was telling Gita "VERNACULAR MATTER OMITTED" (broadly translated

the expression means that I will deal with you when you came home).

Pertinently, P.W.5 Sindhu does not speak of any demand made by the

accused that Gita should hand over the two gofs (chain).

P.W.6 Gautam Wankhade, the brother of the deceased

Gita, has deposed that the couple visited the village on 15-2-2009 and

the accused assaulted Gita and made demand for the gold jewellary on

16-2-2009 between 8-00 to 9-00 a.m. The evidence that the accused

made the demand that Gita should hand over the gold jewellary is an

omission which is duly proved. In so far as the assault under the

influence of liquor is concerned, P.W.3 Bhimrao, P.W.5 Sindhu and

P.W.6 Gautam are speaking in different voices. While P.W.3 Bhirmao

states that the accused assaulted Gita while coming to the village on

15-2-2009, P.W.5 Sindhu does not give a time line although she states

that the couple left the village at 5-00 p.m. after attending the

marriage. P.W.6 Gautam, however, states that the accused assaulted

Gita between 8-00 to 9-00 a.m. on 16-2-2009.

Neighbour Rekha, who is examined as P.W.8, states that at

10-00 a.m. when she was sitting infront of her door, the accused gave a

leg blow to Gita.

The evidence of the prosecution witnesses is too

inconsistent as far as the assault under the influence of liquor to which

the deceased was allegedly subjected by the accused. However, even if

arguendo, the evidence is assumed to be reliable, the solitary incident

is not sufficient to come to a conclusion that the deceased was

subjected to cruelty within the meaning of Explanation (a) to Section

498-A of the IPC. The Court is not suggesting for a moment that a

solitary incident can never be the basis for reaching the conclusion that

the woman was subjected to cruelty. The nature and extent of the

harassment and ill-treatment would be a decisive factor. In the facts of

the case, I am not persuaded to hold that the incident, which appears

to be the only specific instance of cruelty alleged by the prosecution,

can be the basis of conviction under Section 498-A or 306 of the IPC .

Other than the incident which according to the

prosecution occurred when the couple visited the village to attend the

marriage, there is no cogent and unimpeachable evidence on record to

prove cruelty. Neither P.W.5 Gautam nor P.W.8 Rekha speak of any

other instance of ill-treatment. The evidence of P.W.3 Bhimrao is

absolutely silent as regards any other instance of cruelty. In the entire

evidence, P.W.3 has referred only to the incident which occurred on

15-2-2009 when the accused and deceased visited the village to attend

the marriage. P.W.5 Sindhu does state that Gita narrated to her that

the accused ill-treated Gita under the influence of liquor. Firstly, the

evidence is too general and bereft of any particulars. More

importantly, the said evidence cannot be the basis of conviction for

offence punishable under Section 306 of the IPC. The prosecution has

failed to establish harassment or ill-treatment of such nature and extent

as would constitute instigation. It is well settled, that the ill-treatment

and harassment must be willful and of such nature and degree as

would drive the woman to commit suicide. Even if the evidence on

record is taken at face value, the conviction of the accused under

Section 306 of the IPC is not sustainable.

This Court having recorded a finding that the evidence on

record is not sufficient to bring home a charge under Section 306 of the

IPC, the verbal statements of the deceased Gita made to her mother

P.W.5 Sindhu are not admissible in evidence. The acquittal under

Section 306 of the IPC leaves the Court to deal only with offence under

Section 498-A of the IPC. Cause of death is no longer in issue. In this

view of the matter, the prosecution has failed to prove, beyond

reasonable doubt, offence punishable under Section 498-A of the IPC.

In the light of the discussion supra, the accused is entitled

to be acquitted of offence punishable under Sections 498-A and 306 of

the IPC.

The judgment and order impugned is set aside.

The accused is acquitted of offence punishable under

Sections 498-A and 306 of the IPC.

Bail bond of the accused shall stand discharged.

Fine paid by the accused, if any, shall be refunded to him.