ORAL JUDGMENT
1. Being aggrieved by judgment and order dated 04.09.2002 passed by 1stAd hoc Addl. Sessions Judge, Wardha in Sessions Trial No.126/2001 by which the appellants were convicted for an offence punishable under Sections 498A read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/- each in default to suffer rigorous imprisonment for three months.
1
So also for an offence punishable under Section 306 read with section 34 of IPC and sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs.2,000/- each in default to suffer rigorous imprisonment for six months, the present appeal was filed by the appellants.
2. In support of appeal, learned counsel for the appellants invited my attention to the witnesses Gordhan Patil (PW1) and Nirmala Patil (PW2), father and mother of the deceased Seema. There is no other witness who has supported the prosecution on the ground of ill treatment and suicide. He then argued that the evidence of Gordhan (PW1) and Nirmala (PW2) and the FIR show that not a single ingredient of Section 498A and 306 of the IPC is at all proved by the prosecution. It is submitted that presumption under Section 113A of the Indian Evidence Act applied by the trial Court is misconceived since the presumption would arise only if the prosecution discharges the initial burden of proof, which was not done in the present case.
3. Per contra, Mr. Laddhad, learned A.P.P. supported the impugned judgment and order of conviction and submitted that
2
the evidence of father and mother is the only evidence which could be brought by the prosecution on the question of ill treatment. He, therefore, prayed for dismissal of the appeal.
4. I have perused the impugned judgment and the reasons recorded by the trial Judge. I have perused the evidence of Gordhan (PW1), Nirmala (PW2) and Pandurang (PW3), who has turned hostile. From the evidence of Gordhan (PW1) and Nirmala (PW2), it is clear that the house of accused was on the backside of the house of the complainant and everything was visible from the house of the complainant. In other words, the ill treatment, if any, could be easily seen by Gordhan (PW1) and Nirmala (PW2) from their house. Perusal of the evidence of Gordhan (PW1) and Nirmala (PW2) independently and jointly, to my mind, shows the allegations of only general nature of harassment and ill treatment. The only evidence given by the witness is that the accused persons and other family members were beating and ill treating their daughter and because of the ill treatment, she has committed suicide. Except this general evidence, there is no other evidence about who was beating deceased Seema, how, when and at what time. The marriage had taken place on 07.09.2000. Both husband
3
and wife resided at Nagpur for about 20 days and thereafter went to their village and started living there and hardly within 14 days, the deceased Seema committed suicide. Thus, it is seen that three days short of a month after marriage, she committed suicide. No reasonable and prudent man would believe that she would commit suicide at the inception unless the prosecution brings specific evidence of ill-treatment. A general evidence about ill-treatment and harassment would not suffice. It would also be seen that these two witnesses have not stated in their evidence as to why there was ill treatment, whether the same was for demand of any money or suspicion of character or as the case may be. Nothing is stated by the witnesses. I am, therefore, of the opinion that the prosecution failed to discharge the initial burden of proof. Therefore, the question of raising presumption under Section 113 of the Evidence Act would not arise.
5. In view of above, the trial Court committed error of law in recording order of conviction. Hence, following order is passed.
ORDER
(i) Criminal Appeal No.542/2002 is allowed.
(ii) The impugned judgment and order dated 04.09.2002 passed by 1stAd hoc Addl. Sessions Judge,
4
Wardha in Sessions Trial No.126/2001 thereby convicting the appellants for an offence punishable under Sections 498A read with Section 34 of the IPC and sentencing them to suffer rigorous imprisonment for two years each and to pay a fine of Rs.1,000/- each in default to suffer rigorous imprisonment for three months, so also for an offence punishable under Section 306 read with section 34 of the IPC and sentencing them to suffer rigorous imprisonment for three years each and to pay a fine of Rs.2,000/- each in default to suffer rigorous imprisonment for six months, is hereby set aside.
(iii) Appellant no.1-Nageshwar s/o Upasrao Kamble and appellant no.2-Kanta w/o Upasrao Kamble are hereby acquitted of the offence punishable under Sections 498A, 306 read with Section 34 of the
IPC.
(iv) Bail bonds of the appellants stand cancelled.
(v) Fine amount, if any paid, shall be refunded to the appellants.
JUDGE
kahale
5