judg. apeal 45.06.doc
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 45 OF 2006
Govinda Digambar Dandegaonkar,
Aged about 40 years,
R/o.-Village Mudana, Tahsil Mahagaon,
District Yavatmal. .. APPELLANT
-v e r s u s-
The State of Maharashtra, through
its Police Station Officer, Police Station,
Mahagaon, Tahsil Mahagaon,
District Yavatmal. .. RESPONDENT
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Mr. Anup Dangore, Adv h/f Mr. K.S. Narwade, Adv for the appellant.
Mr. H.R. Dhumale, A.P.P. for State.
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CORAM: MRS. SWAPNA JOSHI, J.
DATED : 20th November, 2017 ORAL JUDGMENT This Appeal has been directed against the judgment and order dated 03-12-2005 delivered by the learned Ad hoc Additional Sessions Judge, Pusad in Sessions Trial No.04 of 2005, whereby the learned trial Judge had convicted the appellant (hereinafter will be referred as 'the accused') for the offence punishable under Section 498-A of the Indian Penal Code and was sentenced to suffer Simple Imprisonment for six months and to pay a fine of Rs.1000/-, in default, he was directed to suffer simple imprisonment for one month.
2] I have heard Mr. H.R. Dhumale, the learned Additional Public Prosecutor for the respondent/State and Mr. Anup Dangore, Advocate h/f Mr. K.S. Narwade, the learned Advocate for the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:50 ::: judg. apeal 45.06.doc 2 appellant. I have carefully gone through the record of the case. 3] The prosecution case can be summarized in nutshell as under :-
That the accused was married with deceased Sunanda about 16 years prior to her death. Out of the said wedlock Sunanda was blessed with three daughters and two sons. Deceased Sunanda was the daughter of complainant (PW-1) Punjaram Baliram Pisalkar, who was the resident of Panchunda, Tahsil Mahur, District Nanded. On 01-12-2004, at about 10.00 pm, the complainant received a telephonic message that his daughter Sunanda died by falling into the well. Accordingly, on receipt of the said message, the complainant along with his family members proceeded to village Mudana, where the deceased was residing with her husband and children. On reaching to Mudana, PW-1 noticed that there were injuries on the dead body of Sunanda. PW-1 lodged his oral report (Exhibit-9). Accordingly, an accidental death was registered vide Crime No.60 of 2004 by Police Head Constable Santosh Rude. At the relevant time, ASI Pralhad Rathod (PW-7) was attached to Police Station Mahagaon. He proceeded to village Mudana and recorded the spot panchanama. The spot was a well which was situated at a distance of 150 ft from the house of deceased (Exhibit-25). PW-7 also recorded the inquest Panchanama (Exhibit-15). He sent the dead body for post mortem (Exhibit-27). After two days i.e on 03-12-2004, the complainant has lodged his complaint against the accused (Exhibit-11). On the basis of said complaint, the offence was registered against the accused under Sections 498-A and 306 of the Indian Penal Code vide Crime No.139 of 2004. During the course of investigation, the statements of witnesses were recorded. The accused was arrested on 04-12-2004. On completion of investigation, chargesheet was filed in the Court of JMFC Mahagaon. The case was committed to the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 ::: judg. apeal 45.06.doc 3 Court of Sessions. The charge was framed. The trial was conducted. On appreciation of evidence on record and after hearing both the sides, the learned trial Judge convicted the accused as aforesaid and acquitted the accused of Section 306 of IPC.
4] In order to prove that deceased Sunanda was illtreated by the accused, the prosecution relied upon the testimony of (PW-1) Punjaram, who is the father of deceased, (PW-4) Vijay, who is the brother of deceased and (PW-5) Kisanrao, who is the uncle of the deceased. The prosecution also relied upon the Post Mortem report which reveals the injuries on the body of the deceased. So far as the injuries on the body of deceased are concerned, according to (PW-8) Dr. Digamber, the following injuries were found on the body of the deceased.
"1) Lacerated wound 1" x 1" on the top of forehead, object hard and blunt.
2) Abrasion 2" x 2" on the left cheek.
These injuries were ante-mortem.
Internal injuries Haemotoma present 2" x 2" under scalp. Fracture (depressed skull fracture) present on the top of forehead, size 1" x 1". brain covering and brain surface appearing hemorrhage."
5] PW-8, however, admitted that those injuries are possible by falling into the well i.e. due to accident. Significantly, the spot panchanama reveals that the inner bottom portion of the well was narrow and rocky which supports the contention of PW-8. Thus, there is no doubt that the injuries caused to Sunanda were accidental injuries.
::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 :::judg. apeal 45.06.doc 4 6] As regards the alleged harassment PW-1, PW-4 and PW-5 all these witnesses stated that for about three years after marriage, the accused behaved properly with Suanda and thereafter he started drinking liquor and he used to demand money from Sunanda. PW-1 stated that three years prior to the incident, the accused had beaten Sunanda, therefore, Sunanda lodged the complainant against him in the Police Station Mahagaon and the accused was arrested. In this context, the testimony of Investigating Officer (PW-9) PSI- Suresh Gangade reveals that N.C. complaint No.276 of 2001 was lodged. Thus, the complaint of cognizable offence was not lodged against the accused. According to PW-1, two months prior to the death of Sunanda, she had visited to his house along with her mother-in-law as there was death of his grand son. At that time, Sunanda told his wife that she is harassed by the accused at the time of Deepawali of 2004. His son Vijay had gone to see Sunanda at her place. Vijay informed to PW-1 that the accused demanded Rs.2000/- from him and quarreled with him.
7] From the testimony of PW-1 it is not clear as to in what manner the accused harassed Sunanda. Similarly, it is also not clear as to for what purpose the accused demanded sum of Rs.2000/- from his son. Simply making the demand of Rs. 2000/- cannot be termed as the accused demanded the said amount as illegal demand. So far as the complaint lodged against the accused, three years prior to the incident is concerned, there was NC complaint and it appears that thereafter the matter was settled and again for three years Sunanda cohabited with the accused. The testimony of (PW-4) Datta Raut is also on same line. PW-4 deposed that three years after the marriage, the accused behaved properly with Sunanda, thereafter, he started beating and illtreating Sunanda by drinking liquor. Sunanda lodged complaint against the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 ::: judg. apeal 45.06.doc 5 accused one year before her death as the accused used to harass her and beat her. PW-4 stated that he had gone to the house of complainant at the time of Deepawali festival i.e. on the occasion of Bhaubeej. At that time the accused demanded the amount of Rs. 2,000/- from him. However, as he had no money, the accused asked him to go away from his house. Therefore, he returned to his village. In the cross examination, PW-4, however, admitted that there was a flour mill owned by the accused and he also had she buffaloes in his house. Sunanda and accused used to manage the house affairs and her mother-in-law used to do labour work. PW-4 admitted that mother-in-law of Suannda did not ask her to go for labour work. Even accused also did not ask her to do labour work. Pertinently, PW-4 admitted that the financial condition of the accused was sound. On careful scrutiny of testimony of PW-4, it is not clear, as to when financial condition of the accused was sound, why the accused demanded the amount of Rs. 2000/- from PW-4.
8] The testimony of (PW-5) Kisanrao Gade, who is the uncle of deceased, shows that the accused used to beat Sunanda under the influence of liquor and asked her to bring money from the maternal house. PW-5 stated that two years prior to the incident, Sunanda had lodged report against the accused. He further stated that thereafter for about 2/3 months Sunanda stayed in the house of her father. However, thereafter, Sunanda started residing with her husband. PW-5 stated that he gave understanding to the accused not to beat Sunanda. 9] On careful scrutiny of the testimony of the above said witnesses, it is noticed that there are general allegations against the accused with regard to the harassment to Sunanda. It is, however, not clear as to for what purpose the accused used to harass Sunanda. A general statement is made that the accused ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 ::: judg. apeal 45.06.doc 6 used to beat Sunanda. Admittedly, Sunanda cohabited with accused for about 16 years and out of wedlock with the accused they were blessed with five children. Under these circumstances, it is not clear, as to how Sunanda continued to stay with the accused for 16 consecutive years and it is also not clear as to why his father and brother allowed her to stay with the accused, if at all the harassment of such a nature was meted out at the hands of the accused to her.
10] Thus, the prosecution has failed to prove that there was continues harassment and illtreatment at the hands of accused to Sunanda. It is significant to note, that the learned trial Judge has acquitted the accused of the offence punishable under Section 306 of the IPC which makes clear that there was no abetment to commit suicide at the hands of the accused. It is not proved by the prosecution that the harassment meted out to the Sunanda at the hands of the accused was of such a nature that she drove herself to commit suicide. Under these circumstances, it is difficult to come to the conclusion, that the accused used to illtreat and harass Sunanda.
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty" means--
(a) any willful 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 harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 ::: judg. apeal 45.06.doc 7 valuable security or is on account of failure by her or any person related to her to meet such demand.]"
11] In the case of Ravindra Pyarelal Bidlan and others vrs State of Maharashtra , reported at 1993 Mh.L.J. 658, this Court has in paragraph 26 held as under :-
"26. Sub-clause (b) of the expansion to section 498-A provides that cruelty means harassment of the woman where such harassment is with a view to correcting 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. Sub-clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this made punishable under the section. In other words, it is not every harassment or every type of cruelty that would attract Section 498-A. It must be established that the beating or harassment was with a view to force the wife to commit suicide or to fulfill illegal demands of the husband or the in-laws."
Thus, the learned trial Judge has not considered the evidence in right perspective.
12] In the instant case, there is no evidence on record to show that accused harassed or beaten his wife for the purpose of coercing her to meet the demand of money.
13] In view of above, it is held that the prosecution has failed to prove its case beyond reasonable doubt. In these circumstances, the benefit of doubt is to be given to the appellant/accused. The learned trial Court has not properly evaluated the evidence led by the prosecution. In view thereof, the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 ::: judg. apeal 45.06.doc 8 judgment and order passed by the learned trial Judge, needs to be quashed and set aside. Hence, the following order:-
Order
(a) Criminal Appeal No.45 of 2006 is allowed.
(b) The judgment and order dated 03-12-2005 delivered by the learned Ad hoc Additional Sessions Judge, Pusad in Sessions Case No.4 of 2005, is quashed and set aside.
(c) The appellant is acquitted of the offence under Section 498-A of the Indian Penal Code.
(d) The bail bonds furnished by the appellant stand cancelled.
(e) The fine amount, if any, deposited by the appellant be refunded to him, if not withdrawn.
(f) Muddemal property be dealt with as directed by trial Court after the appeal period is over.
JUDGE Deshmukh ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:54:51 :::