Moreshwar Neelkanth Thengari & 3 ... vs State Of ...
2017 Latest Caselaw 6506 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 373 OF 2002


 1) Moreshwar Neelkanth Thengari,
     Aged about 28 years, 
     Occupation - Agriculturist,

 2) Neelkanth Arjun Thengari,
     Aged about 56 years, 
     Occupation - Agriculturist, 

 3) Sau. Panchabai Neelkanth Thengari,
     Aged about 46 years, 
     Occupation - Agriculturist, 

 4) Sou. Mangala Ramesh Hargude, 
     Aged about 24 years, 
     Occupation - Housewife, 
     
     Nos. 1 to 3 are R/o. Village 
     Tendoli, Tq. Arvi, District Yavatmal
     and No.4 is R/o. Village Pimpalgaon,
     Tq. Nandgaon, Tq. Nandgaon, 
     District Amravati.                              ....       APPELLANTS


                     VERSUS

 State of Maharashtra, 
 through P.S.O., P.S. Arni, Tq. Arni,
 District Yavatmal.                                  ....       RESPONDENT

 ______________________________________________________________

                        None for the appellant, 
            Shri H.R. Dhumale, Addl.P.P. for the respondent.
  ______________________________________________________________



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                              CORAM :  ROHIT B. DEO, J.

                            DATED    :    24
                                                AUGUST, 2017
                                             th



 ORAL JUDGMENT : 

The appellants seek to assail the judgment and order

dated 06-7-2002 delivered by the learned 2 nd Ad hoc Additional

Sessions Judge, Pusad in Sessions Trial 27/2000, by and under which

the appellants are convicted for offence punishable under Section 498-

A of the Indian Penal Code and offence punishable under Section 306

read with Section 34 of the Indian Penal Code. The appellants are

sentenced to suffer simple imprisonment for two years for offence

punishable under Section 498-A of the Indian Penal Code and simple

imprisonment for five years for offence punishable under Section 306

of the Indian Penal Code. The appellants are further directed to pay

fine of Rs.200/- and Rs.300/- each respectively for offences punishable

under Sections 498-A and Section 306 of the Indian Penal Code.

2. None appears on behalf of the appellants even on second

call. The appeal was on board on 22-8-2017 and was adjourned till

today at the request of the Counsel for the appellants. I must record

serious concern and displeasure at the casual and cavalier attitude and

approach of the learned Counsel in seeking time on the last date of

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hearing and remaining absent today. Neither the appellants nor their

Counsel have bothered to remain present nor is there any request on

behalf of the appellants or their Counsel seeking adjournment, which

request could have been made through any colleague in the event of a

genuine difficulty in appearing before this Court today. It is with some

anguish that this Court is impelled to record, that in old criminal

appeals in which the challenge is to conviction and the accused are on

bail, more often than not, neither the accused nor the counsel appear

before the Court, for reasons not far to seek, I would appreciate if the

Hon'ble President of the High Court Bar Association personally

addresses the issue and ensures that such conduct of the Advocate/s

does not derail or render ineffective, the justice disposition system. Let

the registry bring this order to the notice of the Hon'ble President of

the High Court Bar Association, Nagpur and file a compliance report

within 48 hours.

3. In light of the non-cooperative attitude of the Counsel, I

have no option but to decide the appeal on merits after scrutinizing the

record, which I have done. I must record the able and extremely fair

assistance of the learned Additional Public Prosecutor Shri H.R.

Dhumale, who in the true tradition of an officer of the Court, brought

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to the notice of this Court every material including material ostensibly

adverse to the prosecution, to my notice.

4. The gist of the prosecution case is Archana, the daughter

of the complainant Purushottam (P.W.1) married accused 1 on

04-6-1998. Archana visited her parental place on the occasion of

Akhadi and allegedly conveyed that the accused demanded Rs.15,000/-

and ill-treated and taunted her. The complainant states in the police

report that he ignored the grievance in the interest of the marital

peace. On 27-12-1998 the complainant received a message from a

person from Tendoli, that Archana expired due to consumption of

endrine and her body was at the Yavatmal hospital. The complainant

rushed to the hospital and the accused informed him that Archana died

due to consumption of poison. Her last rights were performed at 5-00

p.m. on 27-12-1998. The version of the prosecution is that on

31-12-1998 the complainant received a letter dated 25-12-1998

written by Archana in which Archana mentioned that if amount is not

paid, she would be left with no option but to commit suicide. The

letter speaks of injustice being done and the ill-treatment meted out.

The prosecution contends, that in view of the receipt of the said letter,

the complainant lodged a report on 13-1-1999. Pursuant to the said

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report dated 13-1-1999, offence punishable under Sections 306 and

498-A read with Section 34 of the Indian Penal Code was registered,

investigation ensued and the charge-sheet was filed in the Court of the

Judicial Magistrate First Class, Digras who committed the case to the

Sessions Court. The Sessions Court framed charge at Exhibit 7/C, the

accused pleaded not guilty and claimed to be tried. The defence of the

accused, as is revealed by trend and tenor of the cross-examination and

the statements recorded under Section 313 of the Criminal Procedure

Code is of total denial.

5. The learned Additional Public Prosecutor fairly states that

the case of the prosecution is entirely founded on the contents of the

letter addressed by deceased Archana to her father. The learned

Additional Public Prosecutor states, that if the letter is kept out of the

consideration, the evidence on record may not be sufficient to bring

home the charge under Section 498-A or Section 306 of the Indian

Penal Code. The learned Additional Public Prosecutor fairly invites my

attention to the nature of defence and in particular the cross-

examination on behalf of the defence, which endeavours to cast a

doubt on the authenticity of the letter.

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6. Before I consider the sanctity of the letter dated

25-12-1998 written by the deceased to her father, a striking and

eloquent aspect of the case must receive due consideration. The

learned Additional Public Prosecutor has brought to my notice the fact

that upon the death of Archana accidental death enquiry was initiated

under Section 174 of the Criminal Procedure Code, during the course

of which the statement of P.W.1, the father of the deceased was also

recorded. This statement was recorded on 29-12-1998. The previous

statement of P.W.1 would suggest that P.W.1 unequivocally asserted

that Archana was happy and was not subjected to any harassment by

her in-laws or any other person and that Archana was suffering from

urinary track ailment and was frustrated as despite medical treatment

there was no recovery. The defence used the previous statement under

Section 145 of the Indian Evidence Act to contradict P.W.1. The

contradictions were duly proved as Exhibits 39, 40, 41 and 42, during

the evidence of P.W.6 Shinde, Investigating Officer. However, the

learned Sessions Judge observes that opportunity to explain the

contradictions was not given to P.W.1 and the testimony of P.W.1

cannot be said to be untrustworthy since in the absence of an

opportunity to explain, the purported contradiction is not a

contradiction in law. This finding of the learned Sessions Judge is

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ex facie contrary to record. The testimony of P.W.1 would reveal that

the portion of the previous statement recorded in the enquiry under

Section 174 of the Criminal Procedure was brought to the notice of the

witness and the omission/contradiction was then duly proved during

the cross-examination of the investigating officer.

7. With the assistance of the learned Additional Public

Prosecutor Shri H.R. Dhumale, I have given my anxious consideration

to the contention of the defence that the letter dated 25-12-1998 was

fabricated and not authored by deceased Archana. The learned

Sessions Judge has rightly observed that the handwriting is duly

proved by the father of the deceased and that it was the burden on the

defence to examine a handwriting expert or adduce such other

evidence to prove that the letter was not in the handwriting of

Archana. I am not persuaded to take a view different from that of the

learned Sessions Judge. I would proceed on the premise that the letter

dated 25-12-1998 was indeed written by Archana and received by

P.W.1 on 31-12-1998. A close and holistic consideration of the

contents of the letter would reveal, (a) the deceased Archana was

depressed as the business of accused 1 had come to a standstill and

both the deceased and accused 1 were in the words of Archana

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penniless, (b) accused 1 was not keeping well and the deceased

Archana was suffering from urinary tract infection and burning

sensation (infection), (c) accused 1 was worried, (d) his mother and

father asking him to reside separately, (e) P.W.1 got the deceased

married to accused 1 only because the accused 1-husband was a good

person without considering other aspects, (f) P.W.1 gave Rs.15,000/-

as dowry in the marriage, but then the life of Archana remained

meaningless and full of anxiety and agony, (g) if P.W.1 would have

spent Rs.2,000/- more, Archana too would have been a happy person,

this expression is preceded by the words 'Godavari is happier than me',

(h) The sister-in-law (accused 4) was picking up quarrels with Archana

since the day she came for delivery, (i) Archana's mother-in-law

(accused 3) conveyed to Archana's uncle from Jalgaon 'our

grievances", and (j) accused 1 was asking Archana to bring the amount

of Rs.15,000/- for Mahamai (accused 3), mother-in-law.

8. The frustration and unhappiness pervading in the life of

the deceased is apparent from the contents of the letter. The deceased

did have some grievance against her sister-in-law (accused 4),

however, the grievance is too vague and general to suggest cruelty

muchless cruelty within the meaning of Explanations (a) and (b) of

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Section 498-A of the Indian Penal Code. The contents of the letter,

even if taken at face value do not attribute any misconduct or cruelty

to accused 1-husband. Au contraire, on perusal of the original letter

available in the record would show that accused 1 was equally

frustrated and told the deceased that if Rs.15,000/- is brought, he

himself would shower the same on accused 3 or else he was consumed

poison.

9. The only grievance against accused 2, the father-in-law is

that accused 3 asked the couple to reside separately. The deceased

does suggest in the letter that P.W.3 mother-in-law asked her to bring

Rs.15,000/-, but, then such solitary statement cannot be construed as

cruelty within the meaning of Section 498-A of the Indian Penal Code

nor as an investigation within the meaning of Section 306 read with

Section 107 of the Indian Penal Code. I am satisfied, that the contents

of the letter addressed by deceased Archana to P.W.1 only reveal an

unhappy and frustrated soul and no inference muchless a positive

conclusion that the deceased was treated cruelly or harassed for any

unlawful demand can be drawn.

10. The testimony of P.W.1 does not take the case of the

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prosecution any further. Firstly, the testimony is sketchy and vague

and the omnibus allegations would not constitute proof of cruelty,

secondly and more importantly the credibility of the testimony is

totally destroyed by the duly proved omissions and contradictions. The

testimony is apparently an after thought and it must be noted that in

the statement recorded on 29-12-1998 in the enquiry under Section

174 of the Criminal Procedure Code, P.W.1 clearly asserted that there

was absolutely no harassment meted out the deceased and that she

was frustrated due to illness. The statement recorded in enquiry under

Section 174 of the Criminal Procedure Code is a statement of fact and

is not based on perception or hearsay information. The fact that P.W.1

received the letter dated 31-12-1998 after the recording of the

statement under Section 174 of the Criminal Procedure Code would be

of no relevance. Indeed, the allegations leveled by P.W.1 in

examination-in-chief go beyond the contents of letter dated

25-12-1998 written by deceased Archana. I have no hesitation in

discarding the testimony of P.W.1 as unreliable and not trustworthy.

11. The only other material witnesses are Shrawan Thakare

(P.W.3) and Jagannath Donadkar (P.W.4) respectively. However,

neither P.W.3 nor P.W.4 have said anything adverse to the accused in

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the testimony. P.W.3 and P.W.4 have been examined only to prove the

receipt of the letter from Archana and the lodging of the police report

on the basis of the said letter.

12. The learned Additional Public Prosecutor would urge that

in the teeth of the evidence on record, the finding of the learned

Sessions Judge that offence under Section 498-A of the Indian Penal

Code is made out, does not suffer from any legal infirmity. Section

498-A of the Indian Penal Code reads thus :

"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 file.

Explanation - For the purpose of this section, "cruelty" means-

(a) any wilful 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 scrutiny or is on account of failure by her or any person related to her to meet such demand.)"

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Section 498-A of the Indian Penal Code was inserted by

Act 46 of 1983, with the object of preventing torture and ill-treatment

to a woman by her husband or by relatives of her husband. In order to

bring home the charge under Section 498-A of the Indian Penal Code,

it would be necessary for the prosecution to prove that the woman was

subjected to cruelty as defined in the explanation to Section 498-A of

the Indian Penal Code. 'Cruelty' is defined to mean 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) and harassment of a woman

whether such harassment is with view to coercing 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.

13. It is well settled that not every kind of cruelty constitutes

an offence under Section 498-A of the Indian Penal Code. Cruelty for

the purpose of Section 498-A of the Indian Penal Code may be different

from cruelty envisaged by other statutory provisions including the

cruelty necessary to establish a matrimonial misconduct or offence.

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           14.               I   am   not   persuaded   to   uphold   the   conviction.     I   am

satisfied that the prosecution has not brought home the charge beyond

reasonable doubt. I set aside the judgment and order of the learned 2 nd

Ad hoc Additional Sessions Judge, Pusad in Sessions Trial 27/2000 on

06-7-2002. The appellants are acquitted of the offences punishable

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

Code. The bail bonds of the appellants stand discharged. Fine, if any,

paid by the appellants be refunded to them.

The appeal is disposed of accordingly.

JUDGE

adgokar