Bombay High Court
Ambarsingh S/O Tullusing Chungde vs The State Of Maharrashtra on 6 February, 2024
2024:BHC-AUG:2517
CriAppeal-428-2002
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 428 OF 2002
Ambarsingh s/o. Tullusingh Chungde,
Aged : 28 years, Occu. : Pvt. Service,
R/o. Shiv Shambhu Housing Society,
Bajaj Nagar, MIDC Waluj,
Aurangabad. ... Appellant.
Versus
The State of Maharashtra ... Respondent.
.....
Mr. R. N. Dhorde, Senior Counsel i/b. Mr. V. R. Dhorde, Advocate for
the Appellant.
Mr. S. M. Ganachari, APP for the Respondent-State.
.....
WITH
CRIMINAL APPEAL NO. 14 OF 2003
The State of Maharashtra,
Through Police Station,
MIDC Waluj, Aurangabad ... Appellant.
Versus
Ambarsingh S/o. Tullusingh Chaungde,
Age : 28 years, Occu. : Private Service,
R/o. Shiv Shambhu Housing Society,
Bajaj Nager, MIDC Waluj,
Aurangabad. ... Respondent.
.....
Mr. S. M. Ganachari, APP for the Appellant-State.
Mr. R. N. Dhorde, Senior Counsel i/b. Mr. V. R. Dhorde, Advocate for
the Respondent.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 22nd January, 2024
Pronounced on : 06th February, 2024
CriAppeal-428-2002
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JUDGMENT :
1. Appellant convict for offence under sections 498A
and 306 of Indian Penal Code (IPC) is hereby assailing judgment
and order passed by Additional Sessions Judge, Aurangabad
dated 03.08.2002 in Sessions Case No.274 of 2000.
2. MIDC Waluj police station filed challan against
present appellant - husband and mother-in-law accusing that,
after marriage, deceased Jyoti was maltreated and subjected to
mental and physical cruelty on account of persistent and
consistent demand of money for construction of house and also
insisted for transfer of property of father of deceased in
husband's name. Finally getting fed up of the same, deceased
hanged herself in the house of accused, hence the charge.
3. In support of above case, prosecution has examined
in all 4 witnesses i.e. PW1 Suppadsingh - father; PW2 Poonabai -
mother; PW3 - Shivsingh - paternal uncle and PW4 API Arun
Baste-Investigating Officer. Reliance is also placed on
documentary evidence like FIR, PM report and panchanama
etc.
CriAppeal-428-2002
4. Learned senior counsel Shri R. N. Dhorde instructed
by Shri V. R. Dhorde would submit that, there is weak and
fragile evidence. That, prosecution miserably failed to establish
cruelty as contemplated under law by adducing cogent and
reliable evidence. He pointed out that, except testimony of
parents of deceased and her uncle, there is no other
independent evidence. He took the court through the
testimonies of all four witnesses and also invited attention of
this court to the cross and would submit that, firstly, father and
mother are not consistent and corroborating each other.
Version given by mother is apparently improvised and is
contrary to the version given by her husband. Secondly, it is his
submission that, except stating about solitary instances of
alleged pressing of neck and slapping, there is no allegation of
even evidence on the point of mental torture. Thirdly, according
to him, there is no evidence about PW1 Suppadsingh holding
property which was allegedly sought to be transferred. He
further submitted that, required ingredients for attracting
charge under section 498A of IPC are patently missing.
5. It is his next submission that, there is also allegation
of abetment to commit suicide, however according to him, there
CriAppeal-428-2002
is no iota of evidence in that regard. He pointed out that, father
has accepted that his daughter was short tempered. That,
alleged suicide is of 12.04.2000. However, according to learned
Senior counsel there is no specific evidence as to what preceded
alleged incident of suicide. He pointed out that, in view of said
charge, prosecution was expected to establish that there was
abetment and accused intended that deceased should commit
suicide and with that sole intention there was ill-treatment.
However, he submitted that, prosecution's evidence is
absolutely silent in that regard and so he submits that for want
of evidence said charge had also failed.
Lastly, he submitted that, learned trial Judge has
not considered and appreciated the evidence properly and has
also not considered the settled legal position. Findings being
contrary to the evidence, he submits that, judgment under
challenge is patently perverse and not maintainable. For all
above reasons, he prays to allow the appeal by setting aside the
judgment under challenge.
6. In answer to above, learned APP submitted that,
shortly after marriage deceased was subjected to ill-treatment.
CriAppeal-428-2002
He submitted that evidence of parents PW1 Suppadsingh and
PW2 Poonabai clearly suggest that deceased was subjected to
physical cruelty and they both has stated about husband
beating deceased. Such instances have taken place while
deceased was cohabiting with husband. Deceased promptly
report the occurrence to her parents. They have given
understanding to accused, however, they did not mend their
ways. He submitted that, there was consistent demand of
money for construction of house and also husband demanded
share in the father's property. That, deceased reported such
demands whenever she visited her parent's house. Thus, it is
his submission that necessary ingredients for attracting charge
under section 498A of IPC being available, learned trial Court
has rightly convicted the accused for section 498A of IPC. He
further submitted that only because of continuous harassment
and ill-treatment, deceased was forced to take the extreme step
of committing suicide. He pointed out that, suicide by hanging
has taken up in the house. Thus, accused are rightly held
guilty. Hence, according to him, there being no merits in the
appeal and the judgment and order under challenge being
persistently valid, need not be disturbed with.
7. After considering the above submissions, this court
CriAppeal-428-2002
proceeds to re-appreciate, re-examine and re-analyze the
evidence on behalf of prosecution. On going through the
testimony of PW1 Suppadsingh - father, it is seen that, as
pointed out, parents of deceased are not found to be consistent,
contrary and not lending support to each other.
PW1 Suppadsingh - father in his testimony stated
that, after one and half month of her marriage, husband
accused had pressed neck of his daughter Jyoti at his house.
Apparently it is not stated in the FIR. On visiting evidence of
PW2 Poonabai, her testimony is silent about alleged episode
about pressing neck after one and half month. PW1 Suppadsing
- father is found to be stating about accused husband slapping
him. But, PW2 Poonabai does not refer to such incidence of
slapping in presence of her. According to PW1 Suppadsing
father, deceased was telling about accused no.1 saying that, this
witness should sell his property and handover the amount of
sale transaction to accused no.1, whereas, PW2 Poonabai
mother in her chief deposed about accused demanding gold ring
and asking deceased to tell her father to transfer his property
in his name. Father is apparently silent about demand of any
such ornament. PW2 Poonabai speaks about receiving phone
call from deceased 3 to 4 days prior to the death, conveying that
CriAppeal-428-2002
she would be intending to attend the marriage of maternal
uncle's daughter. PW1 Suppadsing father is silent about it.
Rather, as rightly pointed out that if deceased was to attend
proposed marriage, then there is reason to infer that
everything was smooth.
8. Further, on minute scrutiny of evidence of PW1
Suppadsingh, there are apparently allegation by father
regarding accused demanding Rs.25,000/- for construction of
the house. But, if evidence of father to this extent is carefully
examined, the said demand is not by accused husband, but it is
by deceased herself. PW2 Poonabai is found to be silent on that
part. Version of PW2 Poonabai is apparently improvised one.
While under cross, following omissions are brought
in the testimony of PW1:-
(1) After one and half month of marriage, accused
husband pressed the neck of his daughter.
(2) He convinced his daughter and sent her at the
house of accused.
(3) His daughter stayed at his house for 15 days
thereafter.
(4) Lalsing coming to Mhada colony and understanding
being given.
CriAppeal-428-2002
(5) One month before the incident, accused and
deceased daughter had came to his house and that time
deceased had demanded Rs.25,000/-.
(6) About Jyoti telling that accused no.2 is insisting to
tell him that he should sale his agricultural land and
handover money for the sale transaction.
However, father has admitted that, complaint was
lodged after due consolidation and deliberation.
9. PW2 Poonabai, mother has apparently improvised
her version to the extent of demand of one tola gold ring,
deceased being told by him to ask transfer of property and that
he had married deceased with said sole intention. That, during
Diwali, when deceased was sought to be brought, she was not
sent. Omissions are brought to the extent of payment of dowry
of Rs.50,000/-, about accused seeking transfer of property and
gold ring and deceased being reached at the house of Lalsing,
but accused did not come to take her there.
10. PW3 Shivsingh, paternal uncle merely speaks of
hearing quarrel between deceased and husband. In spite of
being paternal uncle and brother of informant, he has not
CriAppeal-428-2002
uttered a single word about episode of pressing neck,
demanding money for construction of house or seeking transfer
of property.
11. Above discussed material shows that, firstly, specific
instances with details are not coming in the evidence of parents
of deceased. PW1 Suppadsingh - informant merely speaks about
solitary incidence of pressing neck. Nature of ill-treatment or
harassment is not stated. PW1 Suppadsingh and PW2 Poonabai
are not consistent or lending support to each other. Therefore,
as pointed out that, here, there is weak or no cogent evidence to
attract charge under section 498 of IPC. Essential ingredients to
attract the said charge are not available.
12. Likewise, in support of charge of 306 of IPC also,
what exactly happened on the day of alleged hanging, has not
come on record. No neighbour is examined. There is nothing in
support of inducement or abetment at the hands of accused. No
role is attributed to accused no.2 for attracting section 306 of
IPC. It is incumbent upon prosecution to establish mens rea
coupled with incitement, inducement or abetment to commit
suicide. These crucial aspects are not available in the evidence
of prosecution.
CriAppeal-428-2002
In the light of above discussed material, here, there
is no convincing, clinching or strong evidence in support of any
of the charge.
13. It seems that even State has preferred Criminal
Appeal No. 14 of 2003, praying for enhancement of sentence
awarded by learned trial Judge. However, after re-appreciation
and re-analysis of the evidence, this court has held that,
evidence of prosecution does not make out a case for recording
guilt for which accused were charge-sheeted. Appeal thus has
been allowed on re-analysis. Resultantly, the question of appeal
of State for enhancement does not survive.
14. After going through the judgment under challenge,
in the considered opinion of this court, learned trial court has
not considered and appreciated the evidence in its correct
perspective. In spite of failure to meet the essential
requirements and ingredients for attracting the said charges,
case of prosecution has been straightway accepted by learned
trial Judge. Law has not been taken into account while
recording guilt. Therefore, this court is constrained to interfere
CriAppeal-428-2002
by allowing the appeal and accordingly I proceed to pass the
following order :
ORDER
I) The appeal stands allowed.
II) The conviction awarded to the appellant -
Ambarsingh s/o. Tullusingh Chungde in Sessions
Case No.274 of 2000 by learned Additional Sessions
Judge, Aurangabad on 03.08.2002 for the offence
punishable under sections 498A and 306 of Indian
Penal Code stands quashed and set aside.
III) The appellant - Ambarsingh s/o. Tullusingh Chungde
stands acquitted of the offence punishable under
Sections 498A and 306 of Indian Penal Code.
IV) He be set at liberty, if not required in any other case.
V) The fine amount deposited, if any, be refunded to the
appellant after the statutory period.
VI) It is clarified that there is no change as regards the
order in respect of disposal of muddemal.
VII) Criminal Appeal No. 14 of 2003 filed by Appellant
State stands dismissed.
[ABHAY S. WAGHWASE, J.]
Tandale
