Dinkar Dnyandeo Parande vs The Staet Of Mah.Thr.Pso Washim
2018 Latest Caselaw 949 Bom

 apeal548.04.J.odt                         1




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

                     CRIMINAL APPEAL NO.548 OF 2004

          Dinkar s/o Dnyandeo Parande,
          Aged about 43 years, Labourer,
          R/o Pimpalkhuta, Tq. Mangrulpir,
          District Washim.                                  ....... APPELLANT

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

          The State of Maharashtra
          through PSO Police Station Mangrulpir,
          District Washim.                                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Ashish Girdekar, Advocate holding for Shri A.P.
          Tathod, Advocate for Appellant.
          Shri V.P. Gangane, APP for Respondent-State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:                th
                            25    JANUARY 2018.


 ORAL JUDGMENT



 1]               The appellant seeks to assail the judgment and order

dated 29.07.2004 rendered by the learned Ad-hoc Additional

Sessions Judge, Washim in Sessions Trial 130/2002, by and under

which, the appellant 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 one year and to

payment of fine of Rs.500/- and is further convicted for offence

punishable under section 306 of the IPC and is sentenced to suffer

rigorous imprisonment for five years and to payment of fine of

Rs.1500/-. The appellant faced trial along with his mother

Smt. Lilabai Parande, who is acquitted and his father Dnyandeo

Parande who is convicted and sentenced to suffer imprisonment

till rising of the court.

2] Heard Shri Ashish Girdekar, the learned Counsel for

the appellant and Shri V.P. Gangane, the learned Additional

Public Prosecutor for the respondent-State.

3] The genesis of the prosecution lies in the oral report

dated 01.11.2002 lodged by Prabhakar Ihare the brother of the

deceased (P.W.1) the gist of which is thus:

The marriage of the deceased Babibai was solemnized

with the accused Dinkar 17 to 18 years prior to her unfortunate

death. Babibai and accused are blessed with a son from the

wedlock. Babibai was treated well by the accused and his parents

till the birth of the son. Thereafter, the accused and his parents

started harassing Babibai for trivial reasons. A written consent was

obtained from Babibai for the second marriage of the accused.

The accused married one Asha during the subsistence of marriage

with Babibai, ten years prior to the incident.

Babibai used to narrate to her family that she was

harassed. In view of the harassment, Babibai and her sons started

residing separately. The accused transferred two acres of

agricultural land in the name of Babibai's son Rameshwar.

However, the accused continued to cultivate the field and to reap

the benefits thereof. Babibai was demanding the proceeds from

the cultivation, for her maintenance. The accused refused to do so

and used to abuse and taunt Babibai, she was beaten and

harassed.

On 27.10.2002 the informant received a telephonic

call conveying that Babibai was missing from home. He came to

Pimpalkhuta, searched for her sister in vain and after halting for

the night at Pimpalkhuta, he came to Mangrulpir on 20.10.2002.

At Mangrulpir, he came to know that Babibai died due to

drowning in the well in her village and went to Pimpalkhuta.

The police formalities of recording of the panchnama were on

going. The informant lodged report that his sister committed

suicide due to the harassment suffered at the hands of the

accused.

4] On the basis of the report, offence punishable under

section 498-A, 306 read with section 34 of IPC was registered,

investigation ensued and upon completion thereof charge-sheet

was submitted in the court of Judicial Magistrate First Class,

Mangrulpir who committed the proceedings to the Sessions Court.

The learned Sessions Judge framed charge (Exh.13) for offence

punishable under section 498-A, 306 read with section 34 of the

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

The defence is of total denial.

5] I have given my anxious consideration to the evidence

on record, the submissions of Shri Girdekar, the learned counsel

for the accused and Shri Gangane, the learned Additional Public

Prosecutor for the respondent-State and the reasons recorded by

the learned Sessions Judge, and having done so, I am not

persuaded to hold that the prosecution has proved the offence

beyond reasonable doubt.

6] Before I proceed to discuss the evidence on cruelty, it

is with some concern that I must record that the learned Sessions

Judge has dismissed the submission that the prosecution did not

prove that the possibility of accidental death is excluded, with

disdain. The approach and appreciation of evidence by the learned

Sessions Judge is not entirely satisfactory and the finding that

accidental death is not a real possibility is in the realm of surmises

and conjunctures. The spot panchnama reveals that when the

body of Babibai was taken out from the well, along with body a

rope and vessel ordinarily used for drawing water were also

recovered. This significant aspect has not been considered much

less appreciated by the learned Sessions Judge. The spot

panchnama does not reveal that the well was protected by a

parapet wall. The possibility of accidental death could not have

been brushed aside by the learned Sessions Judge in a perfunctory

manner. I am of the considered opinion, that the prosecution

failed to establish that the death was the suicidal and not

accidental. It is trite law that the benefit of any alternate

hypothesis which is reasonably discernible from record must

necessarily be given to the accused.

7] Notwithstanding the finding recorded by me that

accidental death is a real possibility, and arguendo, even if the

death is assumed to be suicidal, I have no hesitation in recording a

finding that the prosecution has not proved cruelty within the

meaning of explanation (a) or explanation (b) of section 498-A of

the IPC and it is axiomatic that in the absence of such proof, the

accused could not have been convicted either under section 498-A

or 306 of the IPC.

8] Section 498-A of the IPC is the only section in chapter

XX-A introduced in the Indian Penal Code by the Criminal

Amendment Act, 1983. Section 498-A 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 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.

9] The cruelty which is envisaged under section 498-A of

IPC may not be cruelty contemplated by other statutory

provisions. Conduct which may constitute matrimonial cruelty or

offence may not necessarily constitute cruelty within the meaning

of explanation (a) or (b) of section 498-A of IPC. Explanation (b)

is concededly not attracted since it is not even the case of the

prosecution that Babibai was subjected to ill-treatment or

harassment in order to coerce her or her family to fulfill any

illegal demand. In order to demonstrate that the conduct of the

accused constitute cruelty within the meaning of explanation (a)

the prosecution was obligated to prove (i) the conduct was wilful

(ii) the wilful conduct was of such a nature as was likely to drive

Babibai to commit suicide or (iii) the wilful conduct was of such a

nature as is likely to cause grave injury or danger to life, limb or

health (whether mental or physical) of Babibai.

10] It would be apposite to refer to the following

observations of the Apex Court in Manju Ram Kalita v. State of

Assam reported in 2009 (2) SLJ SC 1036 and in particular on the

observations of the Apex Court in paragraph 19, 20, 21 and 22,

which read thus:

19. In Smt. Raj Rani v. State (Delhi Administration); AIR 2000 SC 3559, this Court held that while considering the case of cruelty in the context to the provisions of Section 498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.

20. In Sushil Kumar Sharma vs. Union of India, AIR 2005 SC 3100, this Court explained the distinction of cruelty as provided under Section 306 and 498A IPC observing that under Section 498A cruelty committed by the husband or his relation drive woman to commit suicide etc. while under Section 306 IPC, suicide is abated and intended. Therefore, there is a basic difference of the intention in application of the said provisions.

21. In Girdhar Shankar Tawade v. State of

Maharashtra, AIR 2002 SC 2078; this Court held that "cruelty" has to be understood having a specific statutory meaning provided in Section 498A I.P.C. and there should be a case of continuous state of affairs of torture by one to another.

22. "Cruelty" for the purpose of Section 498-A I.P.C. is to be established in the context of S. 498-A IPC as it may be a different from other statutory provisions. It is to be determined/inferedby considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as 'cruelty' to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.

The cruelty, which is statutorily defined under section

498-A must be as a willful conduct which is likely to drive the

woman to commit suicide or which is likely to cause grave injury

or danger to life, limb or health (whether mental or physical) of

the woman. The willful conduct must be persistent and/or

continuous. The willful conduct, in order to constitute cruelty

within the meaning of explanation (a) of section 498-A must be,

at least in close proximity of time to the incident. An aberration or

stale incident, deplorable as the conduct or incident may be,

would not constitute cruelty as is statutorily defined.

11] It would be relevant to refer to the enunciation of law

by the Apex Court in Girdhar Shankar Tawade v. State of

Maharashtra reported in AIR (2002) 5 SCC 177.

"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".

If the evidence of the prosecution is tested on the

anvil of enunciation of law by the Apex Court, the conduct of the

accused which is branded as cruelty by the prosecution, and which

untenable contention of the prosecution found favour with the

learned Sessions Judge, cannot constitute cruelty as is statutorily

defined.

12] Concededly, the marriage was solemnized 17 to 18

years prior to the incident. The version of the prosecution is that

till the birth of the son Babibai was treated well. Why was Babibai

ill-treated after the birth of the son, is left to speculation. It is

however, not in dispute that after 7 to 8 years of marital life, the

accused married a second time with Asha. The evidence that

Babibai along with her son started residing separately, can take

the case of the prosecution no further. Such a step is most natural

and is not necessarily suggestive of ill-treatment or harassment.

13] The ill-treatment or harassment was allegedly meted

out to Babibai since she demanded the fruits of cultivation of two

acres agricultural land which according to the prosecution the

accused transferred in favour of either Rameshwar or Babibai. It is

not in dispute that the family owns five acres agricultural land

which is not partitioned by metes and bounds. Accused Dnyandeo

has five sons including accused Dinkar. The prosecution has not

produced any evidence to prove that as a fact two acres land was

transferred, or indeed could have been transferred, in the name of

either Rameshwar or Babibai. The prosecution story that two acres

of land was transferred by the accused and since despite the

transfer Babibai was deprived of the fruits of the agricultural land,

has gaping holes. The evidence of the prosecution witnesses that

since Babibai was insisting on share in the proceeds of the

cultivation, she was ill-treated, is of doubtful veracity.

14] In order to prove cruelty, the prosecution has

examined Prabhakar Ihare P.W.1 who is the informant and the

brother of the deceased, P.W.3 Shantabai Ihare the mother of the

deceased and P.W.4 Subhash Ihare the cousin brother of the

deceased. The evidence of the prosecution witnesses is absolutely

vague and bereft of particulars. Neither P.W.1 nor P.W.3 nor

P.W.4 have disclosed the month or the year in which the accused

transferred two acres land to the deceased. The prosecution

witnesses have not disclosed as to in which month or even year

was the deceased subjected to cruelty. The evidence of the

prosecution witnesses is sketchy and other than use of stereotyped

expression like ill-treatment, torture and harassment no specific

instance of cruelty or the nature and extent of cruelty is spoken by

any of the prosecution witnesses.

15] The evidence of P.W.1 Prabhakar and P.W.3

Shantabai is not consistent. P.W.3 Shantabai states that the

accused did not deliver possession of two acres of agricultural

land to Babibai and she was insisting that possession be

handed-over to her. However, there is not even whisper of the

evidence of P.W.3 that Babibai was ill-treated or harassed since

she was insisting on possession. P.W.4 Subhash Ihare has a

different story to tell. P.W.4 states that the accused transferred

two acres agricultural land in the name of Rameshwar the son of

Babibai and the accused were demanding the two acres land back

from Babibai, which she was reluctant to do. P.W.4 states that

since she was reluctant to give the land back to the accused but

she was ill-treated and tortured.

16] It must be noted that the time line of the events and

instances is not forthcoming from the prosecution. When was the

land was transferred is left to imagination. When was the

deceased subjected to cruelty is again in the realm of conjectures

and surmises and in order to ascertain the nature and extent of

the ill-treatment or harassment, all that is available on record are

vague statements bereft of details that the deceased was harassed

and ill-treated.

17] In the teeth of evidence on record, the judgment and

order impugned is manifestly erroneous.

18] The judgment and order impugned is set aside.

19] The father Dnyandeo Parande of the present

appellant chose not to prefer an appeal presumably since he was

sentenced only to imprisonment till rising of the court.

In Gurucharan Kumar vs. State of Rajasthan, 2003 2 SCC 698 the

Apex Court observes thus:

32. As noticed earlier the accused Parvin Kumar, husband of the accused Geetu has not preferred an appeal before this Court, on account of the fact that he has already served out the sentence imposed against him. However, though we cannot obliterate the sufferings of Parvin Kumar, we can certainly obliterate the stigma that attaches to him on account of his conviction for a heinous offence under Section 304-B IPC. This Court has laid down a judicious principle that even in a case where one of the accused has not preferred an appeal, or even if his special leave petition is dismissed, in case relief is granted to the remaining accused and the case of the accused, who has either not appealed or whose special leave petition has been dismissed, stands on the same footing, he should not be denied the benefit which is extended to the other accused.

20] The accused Dinkar Parande and Dnyandeo Parande

are acquitted of offence punishable under section 498-A, 306 read

with section 34 of IPC.

20] The bail bond of the accused shall stand discharged

and fine paid, if any, shall be refunded.

  21]              The appeal is allowed. 




                                                JUDGE



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