Bombay High Court
Babanrao Dnyanoba Shinde vs The State Of Maharashtra on 24 April, 2017
Bench: A.M. Badar
(7)APPRNo.282017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.175 OF 2017
IN
CRIMINAL APPLICATION NO.28 OF 2017
WITH
CRIMINAL REVISION APPLICATION NO.175 OF 2017
Babanrao Dnyandoba Shinde,
Age.42, Occupation : Agriculture,
R/at. Nimani, Taluka Tasgaon,
District Sangli, Maharashtra. ... Applicant
V/s.
The State of Maharashtra,
Through Tasgaon Police Station,
District Sangli, State Maharashtra. ... Respondent
.....
Mr.Samarth Karmarkar i/b. Mr.Prasad Apte, Advocate for the
Applicant.
Mr.A.R.Kapadnis, APP for the Respondent/State.
....
CORAM : A.M.BADAR J.
DATED : 24th APRIL 2017.
ORAL JUDGMENT :
1 By this revision petition, the revision petitioner/
original accused/husband is challenging the Judgment and Order
dated 12/04/2016 passed by the learned Additional Sessions
Judge, Sangli in Criminal Appeal No.229 of 2009 thereby
confirming his conviction of the offence punishable under Section
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498-A of the Indian Penal Code ("IPC" for the sake of brevity), so
also the sentence of rigorous imprisonment for three years
imposed on him for this offence by the trial Magistrate. Initially,
the present revision petitioner along with the co-accused namely
Mrs.Jayashree Shinde and Dnyanoba Shinde were prosecuted for
offences punishable under Sections 498-A, 494, 323 504 read with
Section 34 of the IPC vide Regular Criminal Case No.249 of 1996
and by the Judgment and Order dated 20/08/2009, the learned
Judicial Magistrate First Class, Tasgaon was pleased to convict the
present revision petitioner along with accused No.2 Mrs.Jayashree
Shinde for the offence punishable under Section 498-A of the IPC
and they both were sentenced to suffer rigorous imprisonment for
three years. Accused No.3 Dnyanoba came to be acquitted of
offences alleged against him. The present revision petitioner as
well as co-accused Jayashree Shinde were convicted of offences
punishable under Section 323 and 504 read with Section 34 of the
IPC, but no separate sentence was awarded for those offences. In
addition, compensation of Rs.70,000/- was directed to be paid by
the revision petitioner/accused No.1 and in default he is directed
to undergo rigorous imprisonment for a period of six months. This
is how the revision petitioner is coming up before this Court
challenging the appellate order of confirmation of his conviction
for the offence punishable under Section 498-A of the IPC and
sentencing him to suffer rigorous imprisonment for three years
apart from payment of compensation and sentence in default.
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2 I heard the learned Advocate appearing for the revision
petitioner at sufficient length. By taking me through the FIR
lodged by the informant/Suvarna Shinde, the learned Advocate
argued that marriage of the revision petitioner with first informant
Suvarna was solemnized in the year 1993. Allegations levelled
against the revision petitioner/accused are to the effect that the
informant/wife stayed with him for a period of five days after the
marriage and thereafter for a period of two months after
07/11/1994 when there was compromise between the parties in
maintenance proceedings before the Lokadalat. He further argued
that during this period of two months, there was no instance of ill-
treatment to the first informant Suvarna. By taking me through
the cross-examination of P.W.No.1 Suvarna, he argued that she
stayed at the house of the revision petitioner only for a period of
five days after the marriage and thereafter she was not staying
with the revision petitioner till there was compromise in the
maintenance proceedings. With this, he argued that averment in
the FIR dated 19/11/1996 to the effect that after five days, she
was subjected to cruelty on account of demand of dowry are
patently false. The learned Advocate further argued that entire
evidence adduced by the prosecution is hear-say evidence and
there is no evidence about physical assault to the first
informant/wife. No medical evidence is adduced by the
prosecution in support of allegations that the first informant was
used to be subjected to cruelty by assaulting and beating her by
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the revision petitioner/husband. The learned Advocate further
argued that after returning from her matrimonial house, it is
averred that the first informant/wife stayed with her aunt, but her
aunt is not examined by the prosecution to prove ill-treatment to
the first informant/Suvarna. It is further argued that the FIR in
question came to be lodged on 19/11/1996 whereas the marriage
was solemnized on 12/04/1993 and the first informant/wife left
the matrimonial house after five days of marriage. With this, it is
further argued that there is delay of about 22 months in lodging
the FIR which demonstrate that false and concocted case is sought
to be made out by the prosecution.
3 As against this, the learned Additional Public
Prosecutor by taking me through the evidence of prosecution
witnesses has argued that there is enough evidence to infer
cruelty, particularly when the prosecution witnesses have deposed
about second marriage of the revision petitioner with accused
No.2 Jayashree and the resultant ill-treatment as reflected from
the evidence on record.
4 I have carefully considered the rival submissions and
also perused the Record and Proceedings. According to the
prosecution case, first informant Suvarna Jadhav married the
present revision petitioner/accused No.1 on 12/04/1993 and
thereafter she started cohabiting with the revision petitioner at
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village Nimani in Tasgaon Taluka and Sangli District. After five
days of her married life, she was subjected to cruelty by the
revision petitioner and his relatives on account of demand of
dowry and thereafter she was taken by her father. According to
the prosecution case, then the first informant filed proceeding for
maintenance which came to be compromised before the Lokadalat
on 07/11/1994 and the first informant/wife was then taken for
cohabitation to her matrimonial house by the revision petitioner/
husband. She was at her matrimonial house for two months, but
she was subjected to cruelty by the revision petitioner and other
accused persons. It is averred in the FIR that the first informant
was subjected to cruelty even by second wife of the revision
petitioner. According to the prosecution case, after deserting first
informant Suvarna, the revision petitioner/husband had married
again with accused No.2 Jayashree Shinde.
5 On the basis of FIR lodged by the informant/wife on
19/11/1996 offence punishable under Sections 498-A, 494, 323,
504 read with Section 34 of the IPC came to be registered with
Tasgaon Police Station and after filing of charge-sheet charges for
offences alleged against accused persons came to be framed in
R.C.C.No.249 of 1996. The charge U/s.498-A of the IPC was
specifically explaining the fact that the first informant was used to
be subjected to cruelty by accused persons which included accused
No.2 Jayashree Shinde - second wife of the revision petitioner.
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6 In order to bring home the guilt to accused persons,
prosecution has examined in all four witnesses. P.W.No.1 Suvarna
Shinde is the first informant and undisputedly the wife of the
revision petitioner. P.W.No.2 is Namdev Jadhav. He is father of
P.W.No.1 Suvarna. P.W.No.3 Rajaram Salunkhe is uncle of the
first informant. P.W.No.4 Shankar Jadhav is also uncle of the first
informant. The defence of accused persons as seen from the line
of the evidence of prosecution witnesses as well as their
statements under Section 313 of the Code of Criminal Procedure,
1973 ("Cr.P.C." for the sake of brevity) is that of total denial.
However, the revision petitioner/accused No.1 has categorically
accepted the fact that he married Suvarna in the year 1993 and
after marriage, Suvarna started residing with him at village
Nimani. He has also accepted the fact that Suvarna had filed
maintenance application and it was compromised and Suvarna
was taken back by him for cohabitation. The revision petitioner/
husband in answer to Question No.29 has candidly accepted the
fact that he performed second marriage. The revision petitioner/
husband has stated in his examination under Section 313 of the
Cr.P.C. has stated that he was deceived by the first informant and
her parents. According to the revision petitioner/husband, his
wife Suvarna is deaf and this fact was suppressed from him at the
time of the marriage. It is thus clear from the record that
undisputedly the first informant Suvarna is first wife of the
revision petitioner/husband and that he married again during
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subsistence of his marriage with the first informant i.e. Suvarna
Shinde. With this undisputed position, let us examine evidence on
record in order to ascertain whether the impugned Judgment and
Order of the learned trial Court suffers from perversity or
procedural irregularity as evidence cannot be re-appreciated and
finding of fact if based on evidence of prosecution witnesses
cannot be interfered with in the revisional jurisdiction. Prior to
adverting to this aspect, as the charge for the offence punishable
under Section 498-A of the IPC is held to be proved against the
revision petitioner, let us put on record the definition of term
'cruelty' as found in Explanation to Section 498-A of the IPC. It
reads thus :
"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
valuable security or is on account of failure by her or any
person related to her to meet such demand."
Perusal of this definition of the cruelty shows that
subjecting of wife to cruelty includes willful conduct of a husband
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of such a nature as is likely to drive a wife to commit suicide or to
cause grave injury or danger to her life, limb or health. The
definition of the term 'cruelty' includes mental as well as physical
injury. It is thus clear that cruelty postulated U/s.498-A of the IPC
implies harsh and harmful conduct of certain nature, intensity and
persistence. It covers acts causing both physical as well as mental
agony, torture as well as tyranny. If it is established that acts of
husband are of such a nature so as to put the wife to intense
miseries and woes strongly stirring up her feeling that life is not
worth living, the offence punishable under Section 498-A of the
IPC is made out. Hyper sensitivity to ordinary petulance of
married life does not amount to cruelty. Keeping in mind this
settled principles for establishing the offence of cruelty, let us
examine the evidence on record in order to ascertain whether the
finding of commission of cruelty by the revision petitioner and the
resultant sentence is based on evidence on record.
7 The FIR lodged by P.W.No.1 Suvarna Shinde on
19/11/1996 is at Exhibit 44. The FIR shows the averments to the
effect that after five days of her married life, she was subjected to
abuses and beating by the revision petitioner and other accused
persons on account of non-payment of dowry in the marriage. It is
further stated in the FIR that thereafter father of the first
informant had taken her to her parental house. It is well settled
that the FIR cannot be treated as substantive evidence, but it can
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be used to corroborate or contradict the first informant. The first
informant Suvarna in her evidence before the Court has stated
that she resided at the house of revision petitioner for about five
days after her marriage and thereafter her husband i.e. revision
petitioner, father-in-law i.e. accused No.3 Dnyanoba Shinde and
sister of her husband started harassing her. As per version of the
first informant Suvarna when she was residing at the house of her
husband, her husband, father-in-law and second wife of her
husband were harassing her on the ground that sufficient dowry
was not given at the time of the marriage. Sufficient food was not
provided to her and there used to be beating to her. The first
informant deposed that there was settlement between her and her
husband i.e. revision petitioner in the proceedings filed by her for
maintenance and it was agreed that she would be taken back for
cohabitation by the revision petitioner. She further deposed that
accused persons were not allowing her to enter inside the house,
they used to beat her and lastly they told her to go to her parental
house. The first informant further deposed that the accused did
not come to take her for cohabitation and, therefore, she lodged
the report. Cross-examination of this witness reveals that after
five days of her married life with her husband, she went to village
Manjarde. It was suggested to her that after compromise in
maintenance proceedings, she resided for a period of three months
with the revision petitioner/accused and this fact is accepted by
the first informant/wife. However, she denied that she was not
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subjected to cruelty or that all accused persons behaved properly
with her. In her cross-examination, it has been brought on record
that she thereafter stayed at her parental house itself.
8 Evidence of P.W.No.1 Suvarna as such goes to show
that initially she was in company of the revision
petitioner/husband for a period of five days and subsequently after
arriving at the settlement in the maintenance proceedings, she
again stayed with him for a period of three months.
9 How P.W.No.1 Suvarna came to her parental house
after her marriage is explained by her father P.W.No.2 Namdev in
his evidence. He has stated that after marriage, he himself and his
brother had been to the house of accused persons and at that time
they demanded dowry of Rs.1,00,000/- and Hero-Honda
motorcycle from him. As per version of this witness, then the
revision petitioner had left P.W.No.1 Suvarna at his house.
Thereafter, this witness accompanied by Dnyanu Vishnu Mohite,
Yashwant Salunkhe, Rajaram Salunkhe (P.W.No.3) etc. went to
the house of the accused persons to convince them for settlement
in the matrimonial dispute, but they did not pay any heed to his
request. P.W.No.2 Namdev had categorically deposed that
thereafter the revision petitioner/accused No.1 performed second
marriage. Then there was settlement between the couple in
Lokadalat where the maintenance proceedings filed by P.W.No.1
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Suvarna were under reference and at that time the revision
petitioner/husband assured to behave properly with P.W.No.1
Suvarna and accordingly he took her for cohabitation. However,
as stated by this witness, then again there was ill-treatment to
P.W.No.1 Suvarna.
10 Evidence of P.W.No.2 Namdev as such goes to show
that P.W.No.1 Suvarna was reached to her parental house by the
revision petitioner/husband and then she was again taken back for
cohabitation on settlement arrived at before the Lokadalat. She
was thereafter subjected to cruelty.
11 P.W.No.4 Shankar Jadhav is uncle of P.W.No.1
Suvarna. His evidence categorically shows that the revision
petitioner had performed second marriage with accused No.2
Jayashree. This witness has categorically stated that on two to
four occasions, he along with others had been to the matrimonial
house of Suvarna for convincing accused persons to take back
P.W.No.1 Suvarna for cohabitation. As per version of this witness,
after P.W.No.1 Suvarna was taken back for cohabitation by the
revision petitioner/husband, he had seen her kept separately in
dilapidated house by the revision petitioner/husband. This
witness has stated that he has seen ill-treatment to the Suvarna as
he had been to the residence of Suvarna. As per version of this
witness, it was he who informed parents of Suvarna about ill-
treatment to her and then she was brought back by her parents.
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As per evidence of this witness also after deserting Suvarna, the
revision petitioner/husband had performed second marriage with
accused No.2 Jayashree.
12 P.W.No.3 Rajaram - another uncle of informant
P.W.No.1 Suvarna happens to have visited the matrimonial house
of P.W.No.1 Suvarna with Yashwant Salunkhe and thereafter he
did not visit her matrimonial house again. Evidence of this
witness appears to be hear-say because as per his version, he came
to know about ill-treatment to Suvarna from P.W.No.4 Shankar
Jadhav.
13 This is all what was before the Court below in order to
infer cruelty to a married woman. Undisputedly, the revision
petitioner/accused No.1/husband, after marrying first informant
Suvarna had subsequently married another woman named
Jayashree (accused No.2). It is seen from the evidence of
P.W.No.4 Shankar Jadhav that despite compromise before
Lokadalat in the maintenance proceedings initiated by P.W.No.1
Suvarna, though she was taken back for resumption of
cohabitation, she was kept separately in a dilapidated house by the
revision petitioner/ accused No.1/husband. There, as seen from
evidence of P.W.No.1 Suvarna, she was subjected to beating.
Evidence of P.W.No.1 Suvarna categorically goes to show that the
revision petitioner/accused No.1 was not even allowing her to
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enter in their house. Marrying another woman during subsistence
of first marriage and keeping first wife separately in a dilapidated
house, not allowing her to enter inside the house of her husband
where he was residing with his another wife and subjecting her to
beating, in my considered opinion, amounts to intentional harsh
and harmful conduct of the revision petitioner/husband with
requisite intensity and persistence in order to drive a married
woman to commit suicide or to cause grave injury or danger to her
life, limb or health - mental as well as physical. Mens rea of the
Revision Petitioner/accused husband is clearly reflected by his
such conduct of the ill-treating his first wife P.W.No.1 Suvarna. In
this view of the matter, no perversity or procedural irregularity is
seen from the impugned order of the Court below.
14. It is argued that there is a delay in lodging the FIR by
P.W.No.1 Suvarna - wife of the revision petitioner/accused and as
such, the case of the prosecution is doubtful. It is well settled that
the delay in lodging the FIR cannot be used as a ritualistic formula
for discarding prosecution case and doubting its authenticity.
Such delay only puts the Court on guard to search for and
consider if any explanation has been offered for the delay. Once
the explanation is offered, the Court is required to see whether the
same is satisfactory or not. If the delay in lodging the FIR is
explained satisfactorily, then the case of the prosecution cannot be
rejected. When there is possibility of embellishment or
exaggeration in the version of the prosecution on the count of the
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delayed FIR, then it becomes a factor to suspect the case of the
prosecution. In the case in hand, the FIR was against the husband
and in-laws by the wife. In the tradition-bound Indian society,
wife is always reluctant to lodge the FIR against her husband or
in-laws even if she is subjected to cruelty by them. There is always
an attempt on the part of the married women in Indian culture to
save their marriage at any cost. In the case in hand, though the
first informant was knowing that after deserting her, the revision
petitioner/husband married another woman, she agreed to cohabit
with him while settlement of her maintenance proceedings before
the Lokadalat. It is further seen from the evidence on record that
thereafter she was also subjected to cruelty. Her FIR goes to show
that she was waiting with the hope that she will again be taken for
cohabitation by the revision petitioner/husband. As her hope
could not be materialized, left with no alternative, she lodged the
FIR. The informant/wife was trying to save her marriage instead
of prosecuting her husband and in-laws. Offence punishable
under Section 498-A of the IPC is a continuing offence.
Considering the nature of offence and the explanation found in the
FIR lodged by informant P.W.No.1 Suvarna, it cannot be said that
the FIR lodged by her is delayed making the prosecution case
suspect.
15 The revision petitioner/ accused No.1/husband was
rightly convicted of the offence punishable under Section 498-A of
the IPC and, therefore, accordingly sentenced as per law for
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commission of the said offence. The revision petition is thus
devoid of merit and the same is dismissed.
16 Subsequently, pending Criminal Application bearing
No.28 of 2017 also stands disposed of.
(A.M.BADAR J.)
Gaikwad RD 15/15
