Bombay High Court
Tulsiram Shankar Bramhane vs The State Of Maharashtra on 25 April, 2016
Bench: I.K. Jain
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 468 OF 2001
Tulsiram s/o Shankar Bramhane,
age 25 years,occ. Labour,
r/o Borgaon Kasari, Tq. Sillod,
District Aurangabad ...Appellant
VERSUS
The State of Maharashtra
ig ...Respondent
***
Ms. Varsha Ghanekar, Advocate h/f
Shri N.S.Ghanekar, advocate for the appellant
Mr. S.D.Ghayal, APP for Respondent/State
***
CORAM : INDIRA K. JAIN, J.
DATED : 25th April, 2016
JUDGMENT :
This appeal takes an exception to the judgment and
order, dated 18.10.2001, passed by the learned Additional Sessions
Judge, Aurangabad, in Sessions Case No.111 of 1998. By the said
judgment and order, appellant/original accused no.1 was convicted
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of the offence punishable under Section 498-A of the Indian Penal
Code and sentenced to suffer rigorous imprisonment for three years
and to pay a fine of Rs.1,000/- with default clause. Initially appellant
and his mother co-accused Rukhmanbai were tried for the offences
punishable under Sections 307, 498-A r/w 34 of the Indian Penal
Code. Both the accused were acquitted of the offence punishable
under Section 307 of the Indian Penal Code. Accused no.2 was
also acquitted of the offence punishable under Section 498-A r/w 34
of the Indian Penal Code.
2] For the sake of convenience, appellant shall be referred
in his original status as an accused as he was referred before the
Trial Court.
3] Prosecution case, in brief, is as under : -
(i) Accused was married to complainant Rekha
before seven years of incident. After marriage
Rekha started residing at village Borgaon Kasari
along with her husband and mother-in-law. Initially
for six months she was treated well in the
matrimonial house. It is alleged that thereafter both
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the accused were illtreating Rekha on demand of
Rs.10,000/- for purchase of she-buffalo and a
thrashing machine. Rekha was blind by one eye.
Accused used to torture her saying 'duchaki'. On
one occasion accused beat Rekha and driven her
out of the house. She went to Wadod Bazar police
station and lodged report. On the basis of report,
case under Section 498-A of the Indian Penal Code
was filed against the accused before the learned
Judicial Magistrate, First Class, Sillod.
(ii) According to complainant she instituted
proceedings under Section 125 of the Code of
Criminal Procedure against accused no.1. The
Court awarded maintenance to her. When accused
no.1 found that he had to pay maintenance and to
face criminal prosecution he along with some
villagers approached the complainant and her
mother. After assurance of good behaviour matter
was settled. An agreement was executed wherein
accused no.1 had given an undertaking to behave
properly with complainant. After settlement Rekha
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joined the company of her husband and mother-in-
law.
(iii) It is the case of prosecution that despite
undertaking of good behaviour given by accused
no.1 there was no change in his attitude. Both the
accused continued harassment to Rekha. She
disclosed about the same to her mother on the
occasion of Diwali festival.
(iv) Incident took place on 6.12.1997.
Rukhmanbai was residing in farm house that time. It
is alleged that she brought a can of pesticides and
kept the same in the house. She instigated her son
and on her instigation accused Tulsiram attempted to
administer pesticide to Rekha. She became
unconscious. She was immediately removed to the
hospital at Sillod and thereafter brought to Medical
College and Hospital, Aurangabad.
(v) On 13.12.1997 she regained consciousness.
Police Head Constable Nawsare recorded her
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statement. Same was treated as first information
report. On the basis of statement of Rekha
investigation was set into motion. On completing
investigation, charge sheet was submitted and case
was committed to the Court of Sessions.
4] Charge of the alleged offence was explained to the
accused vide Exh.6. He pleaded not guilty and claimed to be tried.
The defence of accused was of total denial and false implication.
According to accused Rekha wanted to extract money from him. On
the day of incident he paid Rs.30,000/- to her towards maintenance
in lump sum and divorce-deed was executed. Accused submitted
that relationship of husband and wife had ceased between him and
complainant and so charge under Section 498-A of the Indian Penal
Code would not sustain.
5] Prosecution examined in all eleven witnesses in support
of its case. Considering the evidence of complainant, her mother
and other witnesses, Trial Court came to the conclusion that accused
no.1 illtreated his wife and illtreatment was to such an extent that it
amounted to cruelty under Section 498-A of the Indian Penal Code.
Trial Court then convicted accused Tulsiram for the offence
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punishable under Section 498-A of the Indian Penal Code as stated
in paragraph 1 above.
6] Heard Ms. Varsha Ghanekar, learned counsel for the
appellant and Shri S.D.Ghayal, learned Additional Public Prosecutor
for respondent/State.
7] With the assistance of learned counsel for the parties,
this Court has gone through the evidence of prosecution witnesses.
Considering the evidence of star witnesses complainant Rekha and
her mother Subhadrabai, this Court for the below mentioned reasons
is of the view that prosecution could not prove the guilt of accused
and accused ought to have been acquitted of the charge.
8] PW 1-Rekha states in her evidence that after six months
of marriage accused started illtreating her on demand of Rs.10,000/-
for purchase of she-buffalo and thrashing machine. She states that
one year after marriage accused beat her with kicks and fists and
drove her out of the house. She lodged report with the police. The
case instituted on the basis of police report was pending before the
Court at Sillod. She further stated that she filed petition for
maintenance in Sillod Court and Court awarded Rs.250/- monthly
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maintenance to her. After one year of the order of maintenance
accused Tulsiram and some villagers came to her parents house to
take her back. She stated that Tulsiram executed bond and gave
assurance of good behaviour to her. After the bond was executed
she came to the house of accused.
It is further stated by Rekha that eight days thereafter accused
again started illtreating her. She had been to her maternal house for
Diwali festival. That time she told about illtreatment to her mother.
She then states that her husband was not willing to pay her
maintenance, so in collusion with co-accused he attempted to
administer insecticide to her. She became unconscious and was
admitted to Ghati hospital. She stated that for seven days she
remained unconscious. After she regained consciousness her
statement was recorded at Ghati hospital. The same is proved at
Exh.60.
9] The evidence of PW 2-Subhadrabai on the alleged
illtreatment is hear say. She stated that at the time of Diwali festival
when Rekha visited her house she told her that she was being
illtreated on demand of Rs.10,000/- for purchase of she-buffalo and
thrashing machine. Rekha also told her that as she was blind with
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one eye accused used to tease her saying 'Duchaki Aandhali'.
10] It is apparent from the cross-examination of complainant
Rekha and her mother PW 2-Subhadrabai that before 1½ months
of alleged incident of administering pesticide there was settlement
between the parties. In view of settlement Rekha resumed the
company of her husband. It also appears from their evidence that
agreement was reduced to writing, accused assured to treat her
properly and on assurance she joined the company of her husband.
11] In view of these admitted facts it was incumbent on
prosecution to bring on record evidence regarding illtreatment
between the period of settlement and alleged incident. Needless to
state that past instances of illtreatment alleged by complainant and
her mother would loose their significance in view of the settlement
between the parties.
12] On going through the testimonies of Rekha and
Subhadrabai it is crystal clear that there was no illtreatment to Rekha
after settlement till the alleged incident of administering poison. If
this is so provisions of Section 498-A of the Indian Penal Code would
not come into play.
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13] Another important factor to be noted in the present case
is that Rekha was not willing to go back to her matrimonial house.
This fact is evident from the evidence of Subhadrabai. It is stated by
Subhadrabai that Rekha was her only daughter. She hardly stayed
for one year in her matrimonial house and rest of the time she stayed
with her mother. Subhadrabai admitted in unequivocal terms that
Rekha was not willing to go back to accused no.1. She also admits
that Rekha obtained divorce from accused no.1 and they have also
taken money from accused no.1.
14] In the light of these material admissions elicited in
cross-examination of the star witness, this Court finds that
prosecution has no case on merits and accused ought to have been
acquitted. Appeal thus deserves to be allowed. Hence the following
order.
ORDER
(i) Criminal Appeal No. 468 of 2001 is allowed.
(ii) The judgment and order, dated 18.10.2001,
passed by the learned Additional Sessions Judge,
Aurangabad, in Sessions Case No.111 of 1998 is
set aside.
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(iii) Instead appellant is acquitted of the offence
punishable under Section 498-A of the Indian Penal
Code.
(iv) Bail bonds of the accused stand cancelled.
(v) Fine amount, if paid, shall be refunded to
appellant.
ig [ INDIRA K. JAIN, J.]
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