Bombay High Court

Abdul Kadar S/O Sheikh Mehboob ... vs State Of Maharashtra & 3 Others on 8 September, 2017

Bench: R. B. Deo

 jcrapeal441of02.odt                  1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR


                CRIMINAL APPEAL NO.441 OF 2002
                             with
           CRIMINAL REVISION APPLICATION 150 OF 2002


                     CRIMINAL APPEAL NO.441 OF 2002

 Mohammad Mustafa Abdul Jabbar Sheikh,
 aged about 33 years,
 resident of Mukutba, Tahsil Zari Jamni,
 District Yavatmal                       ....... APPELLANT


                  ...V E R S U S...


 The State of Maharashtra,
 through Police Station Officer,
 Police Station Mukutban, 
 District Yavatmal                          ......   RESPONDENT


         CRIMINAL REVISION APPLICATION NO.441 OF 2002

 Abdul Kadar s/o. Sheikh Mehboob Hanafi,
 aged about 58 years,
 Occ. Govt. Servant, 
 R/o. Dud Mahal Ward, Near
 Hanuman Khidki, Chandrapur.             ....... APPLICANT


                  ...V E R S U S...


 1        The State of Maharashtra,
          through Police Station Officer,
          Police Station Mukutban, 
          District Yavatmal




::: Uploaded on - 12/09/2017                ::: Downloaded on - 13/09/2017 01:35:19 :::
  jcrapeal441of02.odt                       2

 2        Mohd. Mustafa s/o. Abdul Jabbar
          Sheikh,
          Aged about 33 years,
          R/o. Mukut Ban, Taluka. Zari Zamni,
          District Yavatmal

 3        Abdul Jabbar s/o. Ali Sheikh,
          Aged about 65 years,
          R/o. Mukut Ban,
          Taluka Zari Zamni, Dist. Yavatmal,

 4        Sou. Taslimbi w/o. Abdul Jabbar 
          Sheikh, aged about 50 years,
          R/o. Mukutban, Taluka Zari Jamni, 
          Dist. Yavatmal                     ....RESPONDENTS

 -------------------------------------------------------------------------------------------
          Mr. R.Daga, counsel for appellant.
          Mrs. M.H. Deshmukh, Addl. Public Prosecutor for State.
          Mr. Ashish Fule, counsel for applicant.
 -------------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J.

                                   DATE:               th
                                                     8    SEPTEMBER, 2017.


 ORAL JUDGMENT

 1]               The   appellant   in   Criminal   Appeal   441   of   2002   is

challenging the judgment and order dated 20.7.2002 in Sessions

Trial 87 of 2001 delivered by the Adhoc Additional Sessions

Judge, Yavatmal by and under which the appellant is convicted of

offence punishable under section 498-A of Indian Penal Code and

sentenced to suffer rigorous imprisonment for two years and to

payment of fine of Rs. 2,000/-. The appellant, is however,

acquitted for offence punishable under section 302 of Indian Penal

Code.

Criminal Revision Application 150 of 2002 is preferred by

the father of the deceased and is heard and decided alongwith

Criminal Appeal 441 of 2002.

2] Heard Shri. R.M. Daga, learned counsel for the

appellant, Mrs. Mayuri Deshmukh, learned APP for the State and

Shri. Ashish Fule, learned counsel for the applicant in Criminal

Revision Application 150 of 2002.

3] The learned counsel for the accused Shri. M.R. Daga

submits that the judgment impugned is manifestly erroneous in as

much as even if the evidence on record is taken at face value, the

prosecution has failed to establish offence punishable under

Section 498-A of the Indian Penal Code.

4] The learned counsel Shri M.R. Daga would urge, that

the only allegation, false as the allegation is, against the appellant

is that he suspected the character of the deceased. The learned

counsel Shri. Daga invites my attention to the dying declaration

(Exhibit 35) and the testimony of the father of the deceased (PW

2) to substantiate the submission that the only allegation is of

suspecting the character of the deceased.

5] Mrs. Deshmukh, learned APP fairly does not dispute

that the only allegation is that the appellant suspected the

character of the deceased. It would be apposite to refer to the

provisions of Section 498-A of the Indian Penal Code which read

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 fine.

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 security or is on account of failure by her or any person related to her to meet such demand.

6] The ingredients of section 498-A of IPC are articulated

in Girdhar Shankar Tawade Vs. State of Maharashtra (2002) 5

SCC 177, thus:

"3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislature: whereas Explanation (a) involves three specific situations viz. (I) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury; whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty" in terms of Section 498-A."

"17. As regards the core issue as to whether charges under Sections 306 and 498-A of the Indian Penal Code are independent of each other and acquittal of one does not lead to acquittal on the other, as noticed earlier, there appears to be a long catena of cases in affirmation thereto and as such further dilation is not necessary neither are we inclined to do so, but in order to justify a conviction under the later

provision there must be available on record some material and cogent evidence. Presently, we have on record two inconsistent versions of the brother and the cousin, as such no credence can be attributed thereupon - the documentary evidence (namely, those three letters), in our view, falls short of the requirement of the statute: even on an assumption of the fact that there is no contradiction in the oral testimony available on record, the cousin goes to the unfortunate girl's in laws' place and requests the husband to treat her well - at best some torture and a request to treat her well. This by itself would not bring home the charge under Section 498-A. Demand for dowry has not seen the light of day".

7] It is axiomatic that the cruelty which the prosecution

is required to establish to bring home a charge under section 498-

A of the Indian Penal Code, is statutorily defined. The cruelty

which may be sufficient to bring home a matrimonial misconduct

or offence may not suffice to establish an offence punishable under

section 498-a of the Indian Penal Code.

8] I am inclined to agree with the learned counsel for the

accused, that the prosecution has miserably failed to prove, much

less, prove beyond reasonable doubt that the accused treated the

deceased with cruelty within the explanation (a) and (b) of

section 498-A of the Indian Penal Code. The judgment

impugned is therefore unsustainable in law.