Sanjay Shrikrishna Bombarde And ... vs State Of Mah.Thr.Pso Amravati
2017 Latest Caselaw 7739 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 44 OF 2006


 1        Sanjay s/o. Shrikrishna Bombarde,
          aged about 28 years, Occ. Labourer,

 2        Gajanan s/o. Shrikrishna Bombarde,
          aged about 35 years, Occ. Laboureer,

          Both r/o. Mardi, Tahsil Tiwsa,
          District Amravati.                                      ....       APPELLANTS


                     VERSUS


          State  of Maharashtra,
          Through : PSO Kurha Police Station,
          Tahsil Chandur Railway, 
          District Amravati,
          District Akola.                                         ....       RESPONDENT


 ______________________________________________________________
              Mr. A.V. Gulhane, Advocate for appellants.
       Mr. A.V. Palshikar, Addl. Public Prosecutor for respondent.
 ______________________________________________________________

                                            CORAM  :  ROHIT B. DEO, J.

                                            DATED    :    3
                                                             rd   OCTOBER, 2017


 ORAL JUDGMENT : 

The appellants are assailing judgment and order dated

19.12.2005 in Sessions Case 45 of 2005 delivered by 5th Adhoc

Additional Sessions Judge, Amravati, by and under which, the

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appellants are convicted of offence punishable under section 307 read

with section 34 of Indian Penal Code ("IPC" for short) and are

sentenced to suffer rigorous imprisonment for 5 years and to payment

of fine of Rs. 500/- each. The appellant 1 is additionally convicted of

offence punishable under section 498-A of IPC and is sentenced to

suffer rigorous imprisonment for a period of two years and to payment

of fine of Rs. 1,000/-.

Alongwith the appellants, one Anusayabai Bombarde (mother of

the appellants) and Shrikrushna Bombarde (father of the appellants)

faced trial for offence punishable under section 498-A and 307 read

with section 34 of IPC, however, they have been acquitted.

2 Heard learned counsel Shri. A.V. Gulhane for the

appellants and learned Additional Public Prosecutor Shri. A.V.

Palshikar for the respondent / State.

Learned counsel Shri. Gulhane submits that the judgment

impugned is against the weight of evidence and borders on perversity.

The conviction under section 307 of IPC is based on no evidence, is the

submission. The case of the prosecution is that the appellants forcibly

administered some poisonous substance to Vaishali, the wife of

appellant 1 (hereinafter referred to as "accused 1"). However, neither

there is any seizure from the spot suggesting the existence of poisonous

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substance in the house nor is there a report from the Chemical

Analyzer nor are the details of the medical treatment administered to

Vaishali brought on record by the prosecution, is the submission. Shri.

Gulhane, the learned counsel for the accused would further submit that

equally erroneous is the conviction recorded under section 498-A of

IPC. Concededly, it is not the case of the prosecution that Vaishali was

subjected to illtreatment to coerce Vaishali or her family into fulfilling

any unlawful demand. Explanation (b) to section 498-A of IPC will not

be attracted, is the submission. Shri. Gulhane, learned counsel for the

accused would further submit that the prosecution has not established

that Vaishali was subject to illtreatment of such nature and to such an

extent as would bring explanation (a) to section 498-A of IPC into play.

3 Per contra, Shri. Palshikar, the learned Additional Public

Prosecutor for the State would submit that the judgment impugned is

in accordance with the material on record and does not suffer any

infirmity.

4 Having given my anxious consideration to the evidence on

record and the submissions of the respective learned counsels, I am

inclined to agree with the learned counsel for the accused that the

conviction under section 307 of IPC is manifestly erroneous and

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dangerously borders of perversity. Concededly, two witnesses were

examined by the prosecution, who can be said to be material witnesses.

PW 1 is Vaishali the estranged wife of accused 1 Sanjay and PW 2 is

Rekha the elder sister of Vaishali. PW 2 Rekha is not a witness to the

alleged administration of poisonous substance. Her testimony is

limited to stating that when she returned to the residence of accused 1,

Vaishali was lying on cot and was not speaking. PW 2, accompanied by

accused 1 Sanjay, admitted Vaishali in the hospital and according to

Rekha, Vaishali regained consciousness at or about 4 a.m. on

25.1.2005. The version of PW 1 Vaishali is not at all confidence

inspiring. Her version is not consistent with the First Information

Report (Exh. 46). The witness is not certain as to whether the poison

was administered or there was an attempt to administer the poison.

That apart, there is absolutely no evidence on record to suggest that

poison or any drug or other substance akin to poison was available in

the residence of the accused. The doctor who treated Vaishali is not

examined. The details of the treatment, inter alia whether any

treatment was given to flush out the poison allegedly administered are

not brought on record. In the teeth of the evidence, the conviction of

the accused of offence punishable under section 307 of IPC is

inexplicable and must be set aside.

 5                 The   next   question   which   arises   for   determination   is




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whether the prosecution has established that Vaishali was subjected to

cruelty within the meaning of section 498-A of IPC by accused 1

Sanjay. It is a settled position of law that not every aggressive or foul

conduct is cruelty within the meaning of section 498-A of IPC

explanation (a) and (b). Cruelty is statutorily defined and a conduct

which may amount to a matrimonial offence or misconduct may not

necessarily constitute cruelty within the meaning of section 498-A of

IPC explanation (a) and (b).

6 The common thread which runs in the evidence of both

PW 1 and PW 2 is that some days after the marriage, PW 2 gave a gold

chain for PW 1 Vaishali to wear. The circumstances in which the chain

was given are blurred. However, it is not even the case of the

prosecution, that the gold chain was either a dowry or a gift in

connection with the marriage. The gold chain was apparently

borrowed by Vaishali from her sister (PW2). The prosecution has

successfully brought on record that there was a demand that the chain

be returned and that for reasons which again are not clear, the

accused 1 did not oblige. However, the evidence on record does not

establish that Vaishali was subjected to any illtreatment to coerce her

or her family to fulfill an unlawful demand. Quarrels and squabbles

due to the refusal or inability of Sanjay to return the gold chain and

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some illtreatment during the course of the altercation would not bring

into play explanation (a) of section 498-A of IPC. The learned APP

would however insist that the illtreatment to which Vaishali was

subjected attracts explanation (a) to section 498-A of IPC.

7 At this stage, it would be apposite to reproduce Section

498-A of the Indian Penal Code, which 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.)"

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

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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.

8 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 under other statutory provisions including the

cruelty necessary to establish a matrimonial misconduct or offence.

If the evidence is tested on the anvil of the statutory definition of

cruelty, I am not persuaded to hold that explanation (a) of section

498-A is attracted.

 9                 The  evidence  of both PW 1 and PW 2 on the  aspect of




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cruelty is marred by inter se discrepancies. The evidence is too sketchy

and vague and in the absence of particulars and details of the alleged

illtreatment, it would be extremely unsafe to base the conviction on the

evidence of PW 1 and PW 2. It has been brought on record in the cross

examination of PW 1 that she visited the house of her parents and

sister on 10 to 12 occasions after marriage and during visits did not

make any complaint. It is further brought on record that at the

instance of PW 1 Vaishali, the couple i.e. Vaishali and accused 1 Sanjay

started residing separately from the other accused. The evidence of

PW 1 that she was illtreated as the accused used to doubt her character

or that accused 2 Gajanan used to look at her with an evil eye, is

absolutely uncorroborated and even otherwise untrustworthy. The

attempt to falsely implicate the accused is more than evident.

10 On an overall appreciation of the evidence on record, I am

not persuaded to uphold the conviction.

The judgment and order impugned is set aside.

The accused 1 is acquitted of offence punishable under section

498-A and 307 of IPC and accused 2 is acquitted of offence punishable

under section 307 of IPC.

Bail bonds of the accused are discharged.

Fine paid by the accused, if any, be refunded.

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          Appeal is allowed.   



                                                             JUDGE




          Belkhede