Madan S/O Gyanba Kavar vs State Of Mah.Thr.Pso.Washiim
2017 Latest Caselaw 6450 Bom

                                        1                                        apeal132.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 132 OF 2002


 Madan s/o Gyanba Kavar,
 Aged about 28 years, 
 Occupation - Cultivator, 
 Resident of Rajgaon, P.S. Washim, 
 Tahsil and District Washim.                                     ....       APPELLANT


                     VERSUS


 State of Maharashtra, 
 through P.S.O., Washim                                          ....       RESPONDENT


 ______________________________________________________________

         Shri R.P. Thote, Advocate appointed for the appellant, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

                             DATED    :    22
                                               nd  AUGUST, 2017

 ORAL JUDGMENT : 

The appellant seeks to assail the judgment and order

dated 11-2-2009 in Sessions Trial 80/1998, of the learned Ad hoc

Additional Sessions Judge, Washim, by and under which the appellant

is convicted for offence punishable under Section 498-A of the Indian

Penal Code and is sentenced to suffer simple imprisonment for thirty

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months and to additionally pay a fine of Rs.500/-.

2. The appellant (hereinafter referred to as the "accused")

was tried for offences punishable under Sections 306 and 498-A read

with Section 34 of the Indian Penal Code alongwith one Rameshwar,

Gnyanba and Manjulabai, the younger brother, father and mother of

the accused respectively. The other three accused have been acquitted

by the learned Sessions Judge. The accused is acquitted of offence

punishable under Section 306 of the Indian Penal Code and convicted

for the offence punishable under Section 498-A of the Indian Penal

Code.

3. Shri R.P. Thote, leaned Counsel who is appointed to

represent the accused is not present. His colleague informs that due to

personal difficulty Shri R.P. Thote is not in a position to argue the

appeal today. However, with the fair and painstaking assistance of the

learned Additional Public Prosecutor Shri N.B. Jawade, I have given

my anxious consideration to the entire record and I propose to decide

the appeal on the basis of the record despite the absence of the learned

Counsel for the appellant.

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4. The case of the prosecution, as is discernible from the oral

report Exhibit 21, the printed first information report Exhibit 22 and

the oral evidence adduced during the course of the trial is thus :

Jijabai, the sister of the informant married accused Madan

in 1997. Jijabai died on 06-5-1998. Jijabai's body was recovered from

a well situated in close by proximity to the agricultural field of

accused.

An oral report was lodged by the brother of the deceased

on 07-5-1998 (Exhibit 21) on the basis of which printed first

information report was recorded (Exhibit 22).

An offence punishable under Sections 306 and 498-A read

with Section 34 of the Indian Penal Code was registered at police

station Washim against the accused, his younger brother Rameshwar,

father Gnyanba and mother Manjulabai. The investigation culminated

in presentation of charge-sheet.

5. The learned Sessions Judge framed charge under Section

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

Code, the accused pleaded not guilty and claimed to be tried.

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6. The defence of the accused as is evident from the

statement recorded under Section 313 of the Criminal Procedure Code

is of total denial and false implication.

7. The learned Sessions Judge, after appreciating the

evidence on record, was pleased to record a finding that the

prosecution has not proved the suicidal death beyond reasonable

doubt. Several circumstances and facts proved on the record have

been considered and appreciated by the learned Sessions Judge in

holding that since it is not proved that the deceased committed suicide,

the accused deserves to be acquitted of the offence punishable under

Section 306 of the Indian Penal Code. The finding recorded by the

learned Sessions Judge is unexceptionable and the State has rightly not

challenged the said acquittal in appeal.

8. In the absence of the learned Counsel for the appellant,

this Court has been ably assisted by the learned Additional Public

Prosecutor, who as an officer of the Court, has fairly invited my

attention to the entire evidence. With the assistance of the learned

Additional Public Prosecutor Shri N.B. Jawade, I have carefully

scrutinized the evidence on record in order to satisfy my judicial

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conscience that the guilt of the accused is established beyond

reasonable doubt. Having done so, I am not persuaded to uphold the

finding of guilt recorded by the learned Sessions Judge.

9. The evidence on record will have to be tested and

appreciated on the anvil of the ingredients necessary to be established

by the prosecution for bringing home the charge under Section 498-A

of the Indian Penal Code. The material witnesses are P.W.1, P.W.2

and P.W.3, the brother, mother and father of the deceased,

respectively. P.W.1 has deposed that the accused started saying after

three to four months of marriage with the deceased, that the deceased

Jijabai was dark (black) in colour and he was also beating her. P.W.1

further states that the accused refused to allow Jijabai to visit her

parental home for the festival of Sankrant and the accused told P.W.1

that since agricultural work was on going, it would not be possible to

send the deceased Jijabai to her parental home. P.W.1 states that

when Jijabai visited her parental home eight days prior to the incident,

she told P.W.1 that the accused Madan had asked her to bring

Rs.10,000/- for sowing or else not to return to his house. P.W.1

deposes that he informed Jijabai that he would pay the money after

sometime. The oral testimony of P.W.1 is marred by improvements.

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The version of P.W.1 that accused Madan was beating the deceased

and the version that the deceased Jijabai told P.W.1 that accused had

asked her to bring Rs.10,000/-, is inconsistent with the contents of the

first information report and is an improvement, as is shown in the

cross-examination.

10. P.W.2 Vatsalabai, the mother of the deceased does not

state anything about the alleged beating. Indeed, the only allegation

which is consistent with the version of P.W.1 is that of a demand of

Rs.10,000/- for agricultural operations, and that the accused and the

father and mother of the accused harassing the deceased due to her

dark colour. P.W.2 states that the deceased was pregnant and that the

deceased told her that the accused has asked her to terminate the

pregnancy. P.W.1 who is the first informant has not spoken about the

pregnancy or of the accused having asked the deceased to terminate

the pregnancy. In the cross-examination, P.W.2 admits that the

deceased was having good facial features and that the accused had

seen and approved the deceased as wife. P.W.2 admits that the

deceased was of light complexion. She further admits that the

deceased was busy in cooking in the house of Kawale in the marriage

ceremony throughout night and in the morning the deceased went to

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the field of the accused.

11. P.W.3 Sampatrao who is the father of the deceased states

that after four months of the marriage the deceased told him that all

the accused were teasing her due to black complexion. P.W.3 states

that fifteen days prior to the death of the deceased she told P.W.3 that

the accused, the parents of the accused and the younger brother of the

accused were insisting that the pregnancy be terminated and were

beating her and were physically assaulting the deceased in order to

pressurize her to terminate the pregnancy. P.W.3 states when he

reached to the house accused, he was told by the deceased that the

accused demanded Rs.10,000/- for sowing operations. In the cross-

examination, he admits that after the marriage, the deceased visited

her parental house twice or thrice. He admits that the deceased stayed

for two to four days on the first occasion and then again visited the

parental house after one month. He admits that the deceased again

visited her parents for the pola festival. P.W.3 states that he did not

tell anybody from the village that the accused demanded Rs.10,000/-.

He admits that he did not tell anybody else that the accused demanded

that the pregnancy of the deceased be terminated. The defence has

brought on record an omission in relation to the demand for

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Rs.10,000/- and termination of pregnancy, which however, is not

proved in the cross-examination of the investigating officer.

12. The defence has examined the police patil Trimbak who

has deposed that there was no ill-treatment to the deceased. He has

also deposed that he asked the parents of the deceased to lodge a

police report and the parents of the deceased were not inclined to do

so since the death was accidental. The learned Sessions judge has not

given any importance to the testimony of D.W.1 Trimbak on the

premise that the treatment meted out to the woman is within the four

corners of the marital home and the version of the defence witness that

the parents were not inclined to lodge a report is an improvement

since in the report lodged by the police patil (D.W.1) on the basis of

which 174 Criminal Procedure Code case was registered, this fact is

not mentioned.

13. I am not persuaded to hold that the prosecution has

proved beyond any reasonable doubt that the deceased was subjected

to cruelty as is envisaged under Section 498-A of the Indian Penal

Code.

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14. At the stage of the judgment, the learned appointed

Counsel Shri R.P. Thote has appeared before this Court and has further

assisted the Court.

15. The cruelty which is required to be established to bring

home charge under Section 498-A of the Indian Penal Code would be

cruelty within the meaning of Explanation (a) or (b) thereof. It would

not suffice for the prosecution to establish that the accused has

misconducted himself or that his treatment to the wife is not idle.

Cruelty which may be a matrimonial misconduct or which may be

sufficient to constitute a matrimonial offence may not necessarily

constitute an offence under Section 498-A of the Indian Penal Code. I

am satisfied, on a holistic view of the material on record that the

prosecution has not established beyond reasonable doubt that the

accused is guilty of wilful conduct of such a nature as is likely to drive

a woman to commit suicide or to cause grave injury or danger to life,

limb or health nor would the allegation, the veracity of which is

doubtful, that the accused asked the deceased to bring an amount of

Rs.10,000/- for agricultural operations, constitute harassment

envisaged under Explanation (b) to Section 498-A of the Indian Penal

Code. Nothing is brought on record to suggest that the deceased was

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physically or emotionally traumatized or depressed. Au contraire, the

prosecution version as is unfolded during the course of trial, would

reveal that the deceased was going about her day to day routine in an

unperturbed manner. She, till her death, was participating actively in

social functions and was lending a helping hand in the agricultural

operations of the field of her husband and in laws. Undoubtedly,

death of Jijabai must have been traumatic for her family. Untimely

death of young daughter may have caused immense hurt, anguish and

may be a sense of anger due to a perception that the accused and his

family may not have been ideal husband and in laws. It is not rare that

such feelings impel the family members to indulge in blame game and

exaggerations. However, the finding recorded by the learned Sessions

Judge is that the deceased in every probability met an accidental

death, which finding is unexceptionable, as I have already held. On

overall appreciation of the evidence on record, I am not inclined to

uphold the conviction.

16. The judgment and order of the learned Ad hoc Additional

Sessions Judge, Washm in Sessions Trial 80/1998 on 11-2-2002 is set

aside. The accused is acquitted of the offence punishable under

Section 498-A of the Indian Penal Code. Bail bond of the accused

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stands discharged. Fine, if any, paid by the accused be refunded to

him.

17. Fees of appointed Counsel for the appellant shall be

Rs.1,500/-.

Criminal Application 570/2017.

In view of the disposal of the appeal, no orders on the

application are necessary. The application is disposed of accordingly.

JUDGE

adgokar