Narendra Deolal Boralkar & ... vs The State Of Mah.Thr.P.S.O.Risod
2017 Latest Caselaw 6981 Bom

                                        1                                       apeal185.02




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 185 OF 2002


 1) Narendra Deolal Boralkar,
     Aged about 35 years, 

 2) Kasabai wd/o Deolal Boralkar,
     Aged about 60 years, 

     Both R/o. Risod, Tq. Risod, 
     District Washim.                                           ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.S.O., Risod.                                         ....       RESPONDENT


 ______________________________________________________________

             Shri R.M. Daga, Advocate for the appellants, 
            Shri N.B. Jawade, Addl.P.P. for the respondent.
  ______________________________________________________________

                              CORAM :  ROHIT B. DEO, J.

DATED : 11 th SEPTEMBER, 2017

ORAL JUDGMENT :

Exception is taken to the judgment and order dated

04-4-2002 in Session Trial 81/1998, delivered by the learned II nd

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

are convicted for offence punishable under Section 498-A read with

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Section 34 of the Indian Penal Code. Appellant 1 is sentenced to suffer

rigorous imprisonment for thirty months and to pay a fine of

Rs.1,000/- while appellant 2 Kasabai is sentenced to suffer simple

imprisonment for six months and to pay a fine of Rs.500/-.

Both the appellants (hereinafter referred to as the

"accused") were also charged for offence punishable under Section 306

read with Section 34 of the Indian Penal Code and have been acquitted

of the said charge.

2. Heard Shri R.M. Daga, learned Advocate for the appellants

and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent/State.

3. Shri R.M. Daga, learned Advocate submits that the

prosecution has not established the necessary ingredients to bring

home charge under Section 498-A of the Indian Penal Code. He has

taken me through the evidence adduced by the prosecution and in

particular to the evidence of P.W.1 Vinodkumar Jain, P.W.2 Prakash

Jain, brothers of the deceased, P.W.3 Indrakumar Ukhalkar, P.W.4

Chandrashekhar Mahajan and has urged that while the evidence of the

two brothers of the deceased (P.W.1 and P.W.2) is totally silent on

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material particulars as regards the alleged demand and the ill-

treatment, the evidence of P.W.3 and P.W.4 supports the defence to

the extent that an important aspect of the version of P.W.1 and P.W.2

is falsified by the evidence of P.W.3 and P.W.4. I will advert to the

said aspect at a later stage of the judgment.

4. The learned Advocate for the accused would urge that the

prosecution has neither established cruelty of such nature and extent

as would drive the deceased to commit suicide, nor ill-treatment of

such nature as will cause grave injury or danger to life, limb or health,

nor has the prosecution established that the deceased or her family

members were coerced into fulfilling unlawful demand of the accused.

The evidence is grossly inadequate to prove that the deceased was

subjected to cruelty within the meaning of Section 498-A, Explanation

(a) and (b), of the Indian Penal Code.

5. The learned Additional Public Prosecutor Shri N.B. Jawade

would submit that the prosecution has established that unlawful

demand of money for expansion of business was made by the accused

and that the deceased was ill-treated since the said unlawful demand

was not fulfilled by her family. He would submit that the judgment

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and order is unexceptionable and there is no infirmity either legal or

factual warranting interference in this Court in appellate jurisdiction.

6. It is not in dispute that the marriage between accused 1

and the deceased took place in 1990 and the deceased died on

14-4-1998. The suicidal death due to hanging is not in dispute. The

only issue which arises for consideration is whether the prosecution

has established ill-treatment of the nature, degree and extent as is

envisaged in Explanation (a) and (b) to Section 498-A of the Indian

Penal Code.

7. 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

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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

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

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different from other statutory provisions including the cruelty

necessary to establish a matrimonial misconduct or offence.

9. The evidence will have to be tested on the touchstone of

the statutory definition of "cruelty" and the enunciation of law by the

Hon'ble Supreme Court.

10. P.W.1 who is the brother of the deceased given in

adoption out of the family, is the informant. He states that after one

year of the deceased Suvarnamala's marriage with accused 1, both

accused 1 and accused 2/mother-in-law started harassing her.

Deceased was beaten and asked to bring money from parents for

business. P.W.1 states that the ill-treatment was narrated by the

deceased Suvarnamala to P.W.1. P.W.1 further states that one year

prior to the incident both accused beat the deceased. The deceased

went to Police Station Risod to lodge a report. However, some

respected persons of community including Indrakumar Ukhalkar and

Chandrashekhar Mahajan (P.W.3 and P.W.4 respectively) persuaded

the deceased not to precipitate the matter. P.W.1 states that the said

incident occurred in the month of Bhadrapad. He then states that

accused 1 dropped the deceased to the parental house and the

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deceased narrated the incident of she having gone to the police station

to lodge the report, to P.W.1. He deposes that two months prior to the

incident the deceased was dropped at Chikhali and from Chikhali she

came alone to the parental house. The deceased informed P.W.1 that

accused demanded money and beat her.

11. The evidence of P.W.1 is absolutely vague and no

particulars are mentioned as regards the demand for money. The

alleged demand was initially made seven to eight years prior to the

death of the deceased. The next instance of ill-treatment to which

P.W.1 makes a reference allegedly occurred one year prior to the

death. This version of P.W.1 that one year prior to the death of the

deceased, she went to lodge report in police station Risod in relation to

alleged assault by both the husband and the mother-in-law (accused)

is falsified by the evidence of P.W.3 and P.W.4 who are in unison in

deposing that the deceased had some grievance about the conduct of

her mother-in-law (accused 2). Both P.W.3 and P.W. 4 are consistent

in deposing that they attempted to sort out the issue and made both,

deceased and mother-in-law to see reason. P.W.3 then states in the

examination-in-chief that he was told by the deceased that her mother-

in-law threatened to kill her by pushing her in the well. However, this

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statement is proved to be an omission. The omission pertains to an

important and significant fact and therefore, partakes the nature of

contradiction. On the other hand, P.W.4 gives a clean chit to accused

1/husband and admits in the cross-examination that the relationship

between the deceased Suvarnamala and accused 1 was smooth and

peaceful and that the deceased did not complain about her husband.

As regards the incident of the deceased going to the Risod police

station to lodge a report, P.W.4 states that he called both the accused

and the deceased and advised them to cohabit peacefully. P.W.4 has

deposed that according to Suvarnamala, quarrels were due to domestic

reasons. He has further deposed that accused 2 promised P.W.4 that

she will not quarrel with the deceased in future. The evidence of two

independent witnesses examined on behalf of the prosecution namely

Indrakumar Ukhalkar and Chandrashekhar Mahajan (P.W.3 and

P.W.4) will reveal that inter se relationship between the deceased and

accused 2/mother-in-law may not have been idle and that the cracks

due to the normal wear and tear of marital relationship were indeed

visible. However, there is nothing in the evidence of the two

independent witnesses to suggest that accused 2/mother-in-law was

ill-treating the deceased to such an extent as would drive the deceased

to commit suicide nor does the evidence of P.W.3 or P.W.4 suggest that

9 apeal185.02

the alleged ill-treatment was to coerce the deceased or her family

members to fulfill an unlawful demand. In my opinion, the evidence

of P.W.3 and P.W.4 does not take the case of the prosecution any

further.

12. P.W.1 and P.W.2 who are the brothers of the deceased are

interested witnesses in the sense that the death of their sister must be

traumatic and it is not unknown that the family of the victim

instinctively reacts out of anguish or anger attributable to a perception

that the accused and his family are somehow or the other responsible

for the death of the daughter or sister. It is true, that the evidence of

family members, if otherwise credible and confidence inspiring, must

not be brushed under the carpet nor should the witnesses who are

family members be viewed with instinctive suspicion. However, under

the circumstances, I would consider it prudent to test the evidence of

P.W.1 and P.W.2 on the anvil of caution. Having done so, I am not

persuaded to hold that the evidence of P.W.1 and P.W.2 is sufficient to

prove the offence under Section 498-A of the Indian Penal Code. The

evidence is sketchy and vague and no details are forthcoming as to

when exactly was the demand made, what was the demand, what was

the ill-treatment meted out, why did the family members lodged a

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report only after the death of Suvarnamala and if the deceased was ill-

treated and that too physically by both the husband and the mother-in-

law, why did the deceased not lodge a police report alleging ill-

treatment due to non-fulfillment of demand although P.W.3 and P.W.4

are in unison in deposing that she did the visit to police station Risod

to lodge a report about the conduct of the mother-in-law, which

conduct, however, the deceased herself attributes to domestic reasons.

I am inclined to hold that there are too many doubtful and grey areas

in the case of the prosecution and it would be extremely hazardous

and risky to base conviction on the evidence before the Court.

13. I would, therefore, set aside the judgment and order dated

04-4-2002 delivered by the learned IInd Additional Session Judge,

Washim in Sessions Trial 81/1998 and acquit the accused of the

offence punishable under Section 498-A read with Section 34 of the

Indian Penal Code. The bail bonds of the accused stand discharged.

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

The appeal is disposed of accordingly.

JUDGE

adgokar