Gulabrao Sakharamji Ingle vs The State Of Maharashtra
2017 Latest Caselaw 7151 Bom

                                       1                                       apeal118.00




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 118 OF 2000


 Gulabrao s/o Sakharamji Ingle, 
 Aged about 48 years, 
 R/o Sawali, P.S. Ladkhed, Tq. Darwha,
 District Yavatmal.                                            ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through P.S.O. Police Station Ladkhed, 
 District Yavatmal.                                            ....       RESPONDENT

 ______________________________________________________________

             Ms. F.N. Haidari, Advocate for the appellant, 
            Shri A.V. Palshikar, Addl.P.P. for the respondent.
  ______________________________________________________________

                               CORAM : ROHIT B. DEO, J.

DATED : 14 SEPTEMBER, 2017.

th

ORAL JUDGMENT :

The challenge is to the judgment and order dated

07-4-2000 in Sessions Trial 44/1999, delivered by the learned 3 rd

Additional Sessions Judge, Yavatmal, by and under which the

appellant (hereinafter referred to as the "accused") is convicted for

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

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is sentenced to suffer rigorous imprisonment for three years and

additionally to pay fine of Rs.2,000/-. The accused faced trial for

offences punishable under Sections 304-B and 498-A read with Section

34 of the Indian Penal Code alongwith Kiran Gulabrao Ingle (son) and

Smt. Vimal Gulabrao Ingle (wife).

2. The trial Court acquitted Kiran and Vimal (accused 1 and

accused 3 respectively) of offences under Sections 304-B and 498-A

read with Section 34 of the Indian Penal Code. The accused is,

however, acquitted of offence punishable under Section 304-B of the

Indian Penal Code and convicted for offence punishable under Section

498-A of the Indian Penal Code.

3. The prosecution case as is culled out from the first

information report dated 17-11-1998 lodged by P.W.1 Anna Gaikwad

is that his daughter Sarika married Kiran Ingle (accused 1) on

22-5-1998 at village Dudhgaon, Tahsil Darwha, District Yavatmal.

P.W.1 states in the report that an amount of Rs.7,000/- was given to

accused 1 Kiran and his relatives. P.W.1 further states in the report

that after the marriage, the husband and the father and mother of

husband were asking Sarika to bring an amount of Rs.10,000/- from

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P.W.1. He states that Sarika came to Dudhgaon on the occasion of

Diwali festival and narrated that the accused beat her twice or thrice.

Since Diwali, Sarika was in her parental house. On 06-11-1998 the

mother-in-law of Sarika (Vimal accused 3) who is also the sister of the

informant P.W.1, came to Dudhgaon with Panjab Ingle and requested

P.W.1 and his wife that they be permitted to take Sarika to her

matrimonial home. P.W.1 and his wife were not ready to send Sarika

to her in-laws house. However, Sarika's daughter-in-law and Panjab

Ingle assured that she would be taken at their risk. The first informant

states that on 22-11-1998 he was informed that Sarika consumed

poison. Sarika expired at 12-30 in the night. The first information

report alleges that the three accused I.e. husband, father-in-law and

mother-in-law subjected Sarika to physical and mental harassment

and killed her by administering poison since Sarika did not bring

Rs.10,000/- as dowry.

4. On the basis of the first information report, offences

punishable under Sections 304-B and 498-A read with Section 34 of

the Indian Penal Code was registered, investigation ensued and

ultimately charge-sheet was submitted in the court of Judicial

Magistrate First Class, Darwha who committed the case to the Sessions

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Court.

5. The learned Sessions Judge framed the charge vide Exhibit

6. The accused pleaded not guilty and claimed to be tried.

6. The prosecution has examined nine witnesses including

P.W.1 Anna, who is the father of the deceased, P.W.2 Asha, who is the

mother of the deceased, P.W.3 Kashinath Bhise a relative, P.W.4

Shrikant Ingle, cousin of accused 1 and P.W.5 Rekha Bhise, sister of

the deceased. The defence as is discernible from the statement

recorded under Section 313 of the Criminal Procedure Code is of total

denial and false implication.

7. Heard Ms. Haidari, learned Advocate for the accused and

Shri A.V. Palshikar, learned Additional Public Prosecutor for the

respondent/State.

8. Ms. Haidari, learned Advocate for the accused submits

that the evidence on record does not establish the necessary

ingredients of Section 498-A of the Indian Penal Code. She would

submit, that it is not sufficient to allege and prove an unlawful

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demand, the prosecution must prove beyond reasonable doubt that the

accused subjected the woman to ill-treatment or harassment to coerce

her or her family to fulfill the unlawful demand. The short submission

of the learned Counsel for the accused is that the prosecution witnesses

have vaguely and generally stated that the accused demanded

Rs.10,000/- from the family of the deceased. However, there is no

evidence on record to establish that the deceased Sarika was subjected

to ill-treatment with the intention of coercing the deceased or her

family to satisfy the alleged demand of Rs.10,000/-.

9. Ms. Haidari, learned Advocate invites my attention to

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

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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.

10. 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

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including the cruelty necessary to establish a matrimonial misconduct

or offence.

11. Ms. Haidari, learned Advocate would submit that if the

evidence on record is tested and scrutinized on the touchstone of the

articulation of the Hon'ble Apex Court, the alleged demand, even if it is

assumed arguendo that such a demand was made, will not constitute

cruelty within the meaning of Explanation (a) and (b) of Section 498-A

of the Indian Penal Code.

12. The learned Additional Public Prosecutor Shri

A.V. Palshikar for the respondent/State supports the judgment

impugned. The learned Additional Public Prosecutor submits that the

conviction of the accused is more than justified since the evidence on

record clearly and cogently establishes that the accused subjected the

deceased Sarika to cruelty.

13. The evidence on record will have to be tested on the anvil

of the enunciation of law by the Hon'ble Supreme Court and the

statutory definition of cruelty within the meaning of Explanation (a)

and (b) of Section 498-A of the Indian Penal Code. The father of the

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deceased who is examined as P.W.1 has deposed that when Sarika

visited the parental home on the occasion of Diwali, she complained

that the accused was insisting that Rs.10,000/- be brought from her

parental house and was harassing her to fulfill the said demand. The

witness fairly admits that Sarika did not disclose anything else and the

only complaint was that the accused was subjecting her to harassment.

P.W.1 then deposes that he and Sarika's mother were reluctant to send

Sarika to her matrimonial home. However, since accused 3, who is

also the sister of P.W.1, and one Panjab Ingle the brother of the

accused assured P.W.1 that Sarika will be treated properly, P.W.1

consented to sending Sarika to her matrimonial home. P.W.1 then

deposes that he received the message after 5 to 7 days of Sarika

returning to her matrimonial home that she consumed poison and was

admitted in the hospital. P.W.1 states that he and Sarika did not have

any conversation at the hospital and Sarika was not in a position to

talk.

14. The learned Counsel for the accused would urge, that

firstly there is only a bald statement that the accused asked Sarika to

bring Rs.10,000/- and that according to Sarika, she was harassed.

Such statement, in the absence of any evidence to show that the

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deceased was ill-treated to coerce her or her family to fulfill the

demand, would not take the case of the prosecution any further, is the

submission. The learned Advocate would further urge, that the

statement attributed to deceased Sarika is not admissible even under

Section 32(1) of the Indian Evidence Act, 1872. She would urge, that

the trial Court having recorded a finding that charge under Section

304-B of the Indian Penal Code is not brought home, the only other

charge was charge under Section 498-A of the Indian Penal Code

simplicitor. The cause of death of Sarika or the circumstances leading

to death, was not an issue in deciding whether the prosecution has

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

learned Counsel for the accused would urge that statement attributed

to the deceased are, therefore, hearsay and not saved by Section 32(1)

of the Indian Evidence Act. Reliance is placed on the judgment of the

Hon'ble Supreme Court in the case of Bhairon Singh Vs. State of

Madhya Pradesh reported in 2010 ALL SCR 213.

15. The mother of the deceased is examined as P.W.2. She

states that Rs.7,000/- was paid as dowry to accused 2 before the

marriage and that accused 2 was insisting that Sarika should bring

Rs.10,000/- from her parental house. P.W.2 also states, consistent to

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what is deposed by P.W.1, that P.W.1 and P.W.2 were both reluctant to

send Sarika to her matrimonial home and were persuaded to do so by

accused 3 and the brother of accused Gulabrao. The learned Counsel

for the accused contends that the evidence would reveal that

Rs.7,000/- was the amount handed over to accused 2 to purchase the

clothes for accused 1 Kiran and such amount cannot be considered as

dowry. She would reiterate that the alleged demand for Rs.10,000/- is

a vague and general allegation and that in any event, there is no

evidence to suggest any ill-treatment to coerce the deceased and her

family to fulfill the said demand.

16. P.W.3 Kashinath Bhise is the father-in-law of the sister of

the deceased. He speaks of the payment of Rs.7,000/-. However,

according to P.W.3, the said amount was paid to accused 1 Kiran.

P.W.3 then states that he was informed by P.W.2 that Gulabrao was

demanding Rs.10,000/- and that Sarika was not willing to go to

marital home. The later statement is obviously hearsay and must be

kept out of consideration.

17. P.W.4 Shrikant Ingle is the cousin of accused 1 and is

examined only to bring on record that he took Sarika and accused 1

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Kiran to the Primary Health Centre for medical treatment. The

evidence of P.W.4 is not material in the contest of the issue for

consideration. For the record, it may be noted, that, in the cross-

examination, P.W.4 attempts to support the accused and states that

P.W.4 and his family did not come to know of any quarrel in the

Sarika's maternal home and ill-treatment meted out to Sarika.

18. Rekha, the elder sister of the deceased, is examined as

P.W.5. She speaks of the payment of Rs.7,000/- given to accused 1 as

dowry and that Sarika disclosed to her that she was being subjected to

harassment by all the accused. P.W.5 states that accused 1 was

demanding Rs.10,000/- and that accused 1 Kiran used to beat Sarika

and accused 2 and accused 3 used to "intimidate" her. P.W.5 has

further deposed that accused 2 and accused 3 had threatened Sarika

that she would be administered poison in the event she fails to bring

the money from her father. P.W.5 speaks of the complaint made by

the deceased Sarika when she visited parental home on the occasion of

Diwali. The evidence of P.W.5 is attacked on the ground that the same

is not consistent with the evidence of other prosecution witnesses and

more importantly the evidence is not consistent with the evidence of

the father and mother of the deceased Sarika. The other criticism is

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that the evidence must be discarded as several omissions are brought

on record and duly proved and the omissions are significant enough to

tantamount to contradiction. Perusal of paragraph 5 of the cross-

examination of P.W.5 persuades me to agree of the submission of the

learned Advocate for the accused that the evidence of P.W.5, who

incidentally is the only witness who is leveling serious allegations

against all the accused, is not reliable or trustworthy.

19. Even de hors the submission of the learned Advocate for

the accused that every statement which is attributed to the deceased

Sarika would be hearsay and not saved or made admissible under

Section 32(1) of the Indian Evidence Act since the cause of death or

circumstances leading to death was not an issue, even if the evidence

of the prosecution witnesses P.W.1 to P.W.4 is taken at face value, the

necessary ingredient or sine qua non for constituting an offence under

Section 498-A of the Indian Penal Code is not established. A vague

allegation that Rs.10,000/- was demanded which is not supported by

any evidence to suggest that any ill-treatment was meted out, is grossly

inadequate to bring home the charge. The words "harassment" or "ill-

treatment" or the "life" cannot be chanted as a mantra and in the

absence of necessary details and particulars of harassment and proof

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thereof, it would be fallacious to record a finding that cruelty within

the meaning of Section 498-A, Explanation (a) and (b) of the Indian

Penal Code is established. I have already recorded a finding that the

evidence of P.W.5 is not at all confidence inspiring and must be

discarded.

20. I am afraid, I am not persuaded to agree with the learned

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

Penal Code is made out. The judgment and order dated 07-4-2000

delivered by the learned 3rd Additional Sessions Judge, Yavatmal in

Sessions Trial 44/1999 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 shall stand discharged. Fine paid by the accused,

if any, shall be refunded to him.

The appeal is disposed of accordingly.

JUDGE adgokar