Anil Baburao Paypare vs State Of ...
2018 Latest Caselaw 1116 Bom

 apeal24.02.J.odt                          1




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


                       CRIMINAL APPEAL  NO.24 O
                                                F 2002
                                                       


          Anil son of Baburao Paypare,
          Resident of Bakhardi,
          District Chandrapur.                               ....... APPELLANT


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


          The State of Maharashtra,
          through the Police Station Officer,
          Gadchandur, District Gadchiroli.                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri S.O. Ahmed, Advocate for Appellant.
          Shri N.H. Joshi, APP for Respondent-State.
 -------------------------------------------------------------------------------------------


          CORAM:            ROHIT B. DEO , J.

          DATE:                th
                            30    JANUARY

                                             8    . 


 ORAL JUDGMENT



 1]               Challenge   is   to   the   judgment   and   order   dated 

02.01.2002 rendered by the 3rd Ad-hoc Additional Sessions Judge,

Chandrapur in Sessions Case 10/2000, by and under which, the

appellant-accused Anil s/o Baburao Paypare is convicted for

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

('IPC' for short) and is sentenced to suffer rigorous imprisonment

for three years and to payment of fine of Rs.1000/- and is further

convicted for offence punishable under section 306 of IPC and is

sentenced to suffer rigorous imprisonment for three years and to

payment of fine of Rs.1000/-. The co-accused Baburao Paypare

(father of the accused) Sou. Shakuntala Paypare (mother of the

accused) Waman Paypare (brother of the accused) and Atul

Paypare (brother of the accused), are acquitted of both the

offences.

2] Heard Shri S.O. Ahmed, the learned Counsel for the

appellant and Shri N.H. Joshi, the learned Additional Public

Prosecutor for the respondent-State.

3] The submission of the learned counsel for the accused

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

prosecution has failed to establish that the deceased Sangita was

subjected to cruelty within the meaning of explanation (a) or

explanation (b) of Section 498-A of IPC. The submission is, that

the prosecution witnesses have spoken of a demand, however,

there is no evidence much less cogent evidence that the demand is

accompanied by ill-treatment or harassment constituting cruelty.

Explanation (a) or explanation (b) of Section 498-A is clearly not

attracted, is the submission. In the absence of any evidence to

show that the deceased Sangita was subjected to cruelty, the

conviction under Section 306 of IPC must also be set aside, is the

submission. Shri Ahmed, the learned counsel for the appellant

would submit, that the defence that the deceased Sangita was

depressed or worried due to stomach ailment, is more than

probabalized on the touchstone of preponderance of probabilities,

inter alia by examining two medical practitioners Dr. Pundlik

Tadse and Dr. Harshanand Hiradeve as defence witnesses.

4] Per contra, Shri N.H. Joshi, the learned Additional

Public Prosecutor would support the judgment and order

impugned. The evidence on record is consistent on demand, is the

submission. A persistent demand may amount to cruelty, is the

further submission. The stomach ailment, from which deceased

was suffering, which is dysmenorrhoea is a common ailment

suffered by a large majority of women during menstruation.

The ailment is neither life threatening nor the condition too

painful and a woman being driven to commit suicide due to such

ailment, is highly improbable, is the submission.

5] Concededly, the matrimonial alliance between Sangita

and accused took place on 22.05.1998 and Sangita expired due to

consumption of poison on 29.08.1998 within three months and

ten days of the marriage. It is axiomatic, that if the prosecution is

in a position to establish that Sangita was subjected to cruelty

within the meaning of explanation (a) or (b) of Section 498-A of

IPC, the presumption under Section 113-A of the Indian Evidence

Act shall stand activated, and this court would be entitled to

invoke the statutory presumption, subject to the attending

circumstances, that the accused abetted the suicide. The suicidal

death of Sangita is not in serious dispute.

6] The oral report dated 30.08.1998 is lodged by Waman

Pandurang Lohe (P.W.2), Vitthal Adkuji Kale and Pandurang Vitthal

Kale (P.W.3) accusing Sangita husband Anil Baburao Paypare and

other relatives of having subjected Sangita to harassment. The oral

report states that the harassment was on the issue of demand of

money. On the basis of the said report, offence punishable under

Section 498-A and 306 of IPC was registered at the Gadchandur

Police Station. Investigation ensued, upon completion of which

charge-sheet was submitted in the court of Judicial Magistrate

First Class, Rajua who committed the proceedings to the Sessions

Court. The learned Sessions Judge framed charge (Exh.16) under

Section 498-A, 306 read with Section 34 of IPC. The accused

abjured guilt and claimed to be tried in accordance with law.

The defence is of total denial and that Sangita was suffered from a

stomach ailment which may have persuaded her to end her life.

7] I have given my anxious consideration to the evidence

on record in the context of the submission that the prosecution

witnesses have not spoken of the demand having been

accompanied by cruelty, and having done so, I find that the

submission is well merited. It is a well settled position of law, that

mere demand would not constitute cruelty within the meaning of

explanation (a) or (b) of Section 498-A of IPC. Unless the demand

is accompanied by ill-treatment or harassment of the nature and

extent statutorily envisaged and judicially recognized, mere

demand is not sufficient to bring home charge under Section

498-A of IPC.

8] P.W.1 Smt. Shantabai Lohe, the mother of the

deceased, states in her in examination-in-chief that when

Sangita visited her parental home in the occasion of Ashadhi

Ekadashi she conveyed that the accused are demanding Gas,

Cooler, T.V., Fridge and Hero Honda Motorcycle. In the

cross-examination, it is brought on record that reference to certain

articles in paragraph 1 in the examination-in-chief is an omission.

P.W.1 has not spoken of harassment or ill-treatment.

9] P.W.2 Waman Pandurang Lohe is the father of the

deceased. He has deposed that when Sangita visited parental

home on the occasion of Akhadi, she conveyed that the accused

ill-treated her and that her husband Anil is demanding Hero

Honda Motorcycle and cash amount. P.W.2 has not spelt out the

details or particulars of the ill-treatment. A statement that Sangita

was ill-treated, which is bereft of particulars or details as regards

the specific instances or the nature or extent of the ill-treatment,

does not take the case of the prosecution any further.

The statement that Sangita conveyed that the accused is

demanding Hero Honda Motorcycle and is ill-treating her, is an

omission.

10] P.W.3 Pandurang Vitthalrao Kale, who is a cousin

brother of the deceased, states that accused Anil demanded

Rs.50,000/- from Sangita to purchase Hero Honda vehicle. It is

extracted that this statement is an omission.

11] P.W.4 Harischandra Payghan is the brother-in-law of

Waman Lohe. He states that it was disclosed by Sangita that

accused Anil demanded Hero Honda Motorcycle and other articles.

The solitary statement that due to ill-treatment of all the accused

Sangita consumed poison, does not constitute evidence of cruelty.

12] P.W.5 Annapurna Mamidwar is a neighbour who has

deposed that it was conveyed to her by Sangita that accused Anil

is demanding Hero Honda Motorcycle and other accused

demanding amount.

13] P.W.6 Anandrao Daf is a relative who states that

Sangita disclosed that there is ill-treatment to her at the hands of

the accused on the issue of demand for Hero Honda Motorcycle.

The details of the ill-treatment are not testified to by the said

witness.

14] P.W.7 Nanaji Ghate has deposed that during the

marriage talks, dowry of Rs.50,000/- and five grams golden ring,

was settled.

15] P.W.8 Narayan Bharsakle is the Investigating Officer

who has proved the omissions brought on record during the

evidence of the prosecution witnesses.

16] The conscious of the court is satisfied, that there is no

evidence on record to prove that the deceased was subjected to

harassment or cruelty to coerce her or her family members to

fulfill an unlawful demand. Demand per se, which is not

accompanied by ill-treatment or harassment would not constitute

cruelty within the meaning of Section 498-A of IPC. That apart,

the evidence on demand is also not confidence inspiring. Be it

noted, that in the First Information Report dated 30.08.1998 the

only reference to demand is the demand for an unspecified

amount. The evidence of the prosecution witnesses on demand is

marred by material omissions partaking the nature of

contradictions. Even de hors the defence evidence, the evidence on

record does not establish offence punishable under Section 498-A

or Section 306 of IPC beyond reasonable doubt.

17] The judgment and order impugned is set aside.

18] The accused is acquitted of offence punishable under

Section 498-A, 306 read with Section 34 of IPC.

19] The fine paid by the accused, if any, shall be refunded.

20] The bail bond of the accused shall stand discharged.

      21]           The appeal is allowed.




                                             JUDGE



NSN