Nandkishor Bhanudas Belorkar & ... vs State Of Mah.Thr.P.S.O.Tiosa
2017 Latest Caselaw 7685 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                      NAGPUR BENCH : NAGPUR.

                          CRIMINAL APPEAL NO. 679 OF 2003

                 1] Nandkishor Bhanudas Belorkar
                    Aged about 25 years, 

                 2] Sau. Anusaya Bhanudas Belokar
                     Aged aboout 50 years,

                     Both R/o Talegaon (Thakur)
                     Tq. Tiosa, District-Amravati.                                        ....  Appellants.
                                                                                         
                                  -Versus-
                     State of Maharashtra 
                     Through Police Station Officer,
                     Tiosa, District-Amravati.                              ....  Respondent.
       ----------------------------------------------------------------------------------------------
        None for the appellants.                 
        Shri S.B.Bissa, Additional Public Prosecutor for Respondent.
       ---------------------------------------------------------------------------------------------
                                           Coram : Mrs. Swapna Joshi, J.

Dated : 28 th September, 2017.

ORAL JUDGMENT

This appeal has been directed against the judgment and

order dated 7.10.2003 passed by the Additional Sessions Judge, Amravati

in Sessions Trial No. 138/1998, whereby the learned trial Judge convicted

the accused nos. 1 and 2 under Section 498 read with 34 of the Indian

Penal Code and sentenced to suffer rigorous imprisonment for two years

and to pay a fine of Rs.500/- each, in default to suffer rigorous

imprisonment of six months.

2] I have heard Mr. Bissa, the learned Additional Public

Prosecutor for the respondent-State. The appellants/accused and his

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Counsel remained absent. With the assistance of the learned APP, I have

carefully gone through the record of the prosecution case.

3] The prosecution case, in nutshell, can be stated as under:

Deceased Madhuri got married with the accused no.1 on

29.6.1997. After marriage she started residing with her husband and

in-laws at Tiosa, District-Amravati. It is the case of the prosecution that

after marriage, Madhuri had gone to her parental house at Jalgaon, Tah.

Dhamangaon (Railway), District-Amravati. She stayed with her parents for

eight days. During her said visit, Madhuri informed to her parents (PW-2)

that she is ill-treated by her mother-in-law. Her mother-in-law is demanding

cooler. Thereafter, his daughter left his house along with her husband.

Thereafter, 15 days prior to Makar Sankrant, when PW-2 went to the house

of Madhuri at that time, Madhuri started weeping and informed him that her

mother-in-law ill-treats her and said that she would kill her. She further

informed that her mother-in-law instigates her husband and, therefore, her

husband beats her at night. Her husband used to consume liquor. Madhuri

further said that as cooler was not provided, her husband used to say that

the clothes which they had purchased for him during Diwali would be torn

by him and utilize it in his hotel for cleaning the crockery. She further

stated that on the day of incident at 9 am she was brushing her teeth by

sitting near a hearth. In the meantime her mother in law poured kerosene

on her person and lit her fire with burning fuel inside the hearth. Her father

in law admitted her in the hospital. P.S.O. Tiosa prepared spot

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panchanama (Exhibit-8). Police also seized the articles from the place of

incident (Exhibit-11) and recorded the statement of witness. They have

registered the offence against the accused (Exhibit 41).

4] The seized articles were sent to CA office for its analysis.

After completion of the investigation, the chargesheet came to be filed in

the Court of learned JMFC. The case was committed to the Court of

Sessions. The learned trial Judge framed the charge. Both the accused

pleaded not guilty to the charge levelled against them and claimed to be

tried. On conducting the trial, on appreciation of the evidence and hearing

both the sides, the learned trial Judge convicted both the accused as

aforesaid. Hence, this appeal.

5] On hearing the rival contentions of both the sides, it would be

advantageous to go through the case of the prosecution. The prosecution

has mainly relied upon the testimony of PW-2-Marotrao is the father of the

deceased. PW-2 deposed that after marriage her daughter had come to

his house for Diwali festival and stayed at his house for 8 days. PW-2

further deposed that her daughter Madhuri had disclosed her the ill-

treatment at the hands of the accused persons. PW-2 further deposed that

her mother in law was demanding cooler.

6] In the cross-examination of PW-2 an improvement was

pointed out that Madhuri informed to PW-2 that as the cooler was not

provided, her husband said that he would tear the clothes which her

parents had purchased for him at Diwali and he would utilize it in the hotel.

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7]                   The testimony of PW-3 reveals that after marriage, at the time

of Diwali, her daughter Madhuri came to her house. She stayed there for

about eight days and at that time she informed that her mother-in-law and

husband used to ill-treat her and they used to demand the cooler. PW-3

told her that after few days she will provide cooler to her. PW-3 purchased

the clothes for the husband of Madhuri. Thereafter, Madhuri and her

husband went to their village.

8] From the testimony of PW-2 and 3, it reveals that accused

nos. 1 and 2 used to demand a cooler from Madhuri. It is, however, not

clear as to what sort of ill-treatment was given by the accused persons. It is

also not clear as to why the complaint was not lodged by the parents of the

deceased against the accused. From the testimony of PW-2 and PW-3 it

does not reveal that any sort of continuous act of cruelty at the hands of

accused had taken place.

9] In this regard, Section 498-A of IPC reads as under :-

"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 purposes of this section. "cruelty", means-

(a) 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) 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."

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In the present case, there is absolutely no evidence on record

to show that Madhuri was treated with cruelty by the appellants.

10] In this context it is significant to note that the accused persons

are acquitted for the offence punishable under Section 302 r/w 34 of the

Indian Penal Code, the allegations against the accused persons were that

accused no.2 had set her on fire, therefore, Madhuri died. However, the

said fact has not been proved by the prosecution and the learned trial

Judge, accordingly acquitted both the accused. So far as cruelty is

concerned, apart from demand of cooler, there is no other allegation against

the accused.

11. In this context, an useful reference can be made to the

judgment in the case of Ravindra Pyarelal Bidlan & ors.Vs. State of

Maharashtra, reported in 1993 Mh.L.J. 658, more particularly, Para no.26

thereof, which reads thus:-

"26. Sub-clause (b) of the explanation to section 498-A provides that cruelty means 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. Sub-clause (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand. Hence, mere harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that is cruelty and this made punishable under the section. In other words, it is not every harassment or every type of cruelty that would attract section 498-A. It must be established that the beating or harassment was with a view to force the wife to commit suicide or to fulfill illegal demands of the husband or the in-laws."

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12]                  In view thereof, it cannot be said that there was harassment

made by the accused persons to meet the unlawful demand of cooler. Thus,

there is no convincing evidence on record to show that the accused had ill-

treated Madhuri, for fulfillment of demand of cooler. Thus, the prosecution

has failed to prove that accused nos. 1 and 2 subjected Madhuri to cruelty

by torturing her physically and mentally.

13] In view of above, it is held that the prosecution has failed to

prove its case beyond reasonable doubt. The learned trial Court has not

properly evaluated the evidence led by the prosecution. In view thereof, the

judgment and order passed by the learned trial Judge, needs to be

quashed and set aside. Hence, the following order:-

O R D E R

(a) Criminal Appeal No.679 of 2003 is allowed.

(b) The judgment and order dated 07-10-2003 delivered by learned Additional Sessions Judge, Amravati in Sessions Trial No.138 of 1998, is quashed and set aside.

(c) The appellant nos. 1 and 2 are acquitted of the offences under Sections 498-A r/w 34 of I.P.C.

(d) The bail bonds furnished by the appellants stand cancelled.

(e) The fine amount, if any, deposited by the appellants be

refunded to him, if not withdrawn

(f) Muddemal property be dealt with as directed by Trial Court

after the appeal period is over.

JUDGE Ingole